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10313748

Manfried F. WEST, Appellant, v. STATE of Alaska, Appellee

West v. State

1996-09-20

No. A-5787

110

115

923 P.2d 110

923

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Manfried F. WEST, Appellant, v. STATE of Alaska, Appellee.

Manfried F. WEST, Appellant, v. STATE of Alaska, Appellee. No. A-5787. Court of Appeals of Alaska. Sept. 20, 1996. Bethany P. Spalding, Assistant Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for Appellant. James P. Doogan, Assistant District Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2358

14724

OPINION. BRYNER, Chief Judge. Manfried F. ("Fred") West was convicted by a jury of arson in the second degree, AS 11.46.410, and unlawful evasion in the first degree, AS 11.56.340. On appeal, West claims that the superior court erred in failing to suppress certain statements he made to the police shortly before his arrest, in refusing to sever the two charges against him, in declining to change his trial venue from Fairbanks, and in admitting evidence of other acts of misconduct by him. We affirm. On the night of May 19, 1994, West was involuntarily discharged from the Regional Center For Alcohol and Other Addictions' (RCAOA), a Fairbanks treatment program in which West had been allowed to reside and participate pending sentencing on a forgery charge for which he had recently been convicted and pending execution of a sentence recently imposed upon revocation of West's probation for an earlier burglary conviction. As a condition of his pre-sentence release to RCAOA, West had been directed to report to jail — the Fairbanks Correctional Center (FCC) — in the event his participation in RCAOA terminated for any reason. West contacted FCC and was told to call back in the morning, when staff members would have access to his file. West failed to contact or report to FCC the following day. Instead, he went to a cabin outside Fairbanks that belonged to his brother, where he remained secluded until the Alaska State Troopers learned of his whereabouts more than a week later, on May 27. The troopers, seeking to arrest West for unlawful evasion, surrounded his cabin; they then established telephone contact with him and advised him to surrender. West refused, stated that he was armed, and threatened to blow up the cabin. For three and one-half hours, Trooper Sergeant James McCann spoke to West on the telephone, attempting to negotiate West's surrender. West refused to come out, alternating between threats to blow the cabin up and attempts to negotiate favorable terms of surrender with McCann. During these negotiations, West told McCann that he (West) had shot and killed Joe Vogler; West offered to tell McCann where Vogler's body was buried. Ultimately, however, the negotiations proved fruitless. West terminated the telephone conversation, telling McCann: "It's all over bud . this place is gonna blow . the best you could do . is get the hell outa here . the dynamite is in the living room." Smoke and flames soon engulfed the cabin. Firefighters, fearing the presence of weapons and explosives, were forced to stand by until the cabin had nearly burned to the ground. After the fire was extinguished, troopers searched the remains of the cabin and found West in a protected area of the foundation. West was not seriously injured and was booked into FCC. He was eventually charged with second-degree arson and first-degree unlawful evasion. Prior to trial, West moved to suppress the statements he made to McCann during their telephone negotiations. West argued that his conversation with McCann amounted to custodial interrogation and that he therefore should have been informed of his Miranda rights. West also argued that McCann's failure to contact West's counsel before conversing with West amounted to a violation of West's constitutional right to counsel. The superior court denied West's suppression motion. West renews these arguments on appeal. Both arguments lack merit. Although West's Miranda claim presents a question of first impression in Alaska, the issue has frequently been considered by courts in other jurisdictions. For reasons that seem sound upon reflection, these courts unanimously conclude that custodial interrogation requiring Miranda warnings does not occur when police communicate with a barricaded suspect who holds them at bay. The superior court expressly relied on this line of cases in rejecting West's Miranda argument. On appeal, West fails to distinguish, or even mention, these cases, and he cites no contrary authority. We find these cases persuasive and uphold the superior court's conclusion that West was not subjected to custodial interrogation. West's right-to-counsel argument is equally groundless. The constitutional right to counsel is case specific: "[T]he fact that [the right] has attached in a particular case does not entitle the accused to demand representation in connection with factually and legally unrelated matters in which the state has made no accusation and taken no adversary action." Carr v. State, 840 P.2d 1000, 1005 (Alaska App.1992). West was represented by counsel in connection with his probation revocation action and his recent forgery conviction. The troopers' contact with West related to a néw crime: the unlawful evasion that resulted from West's failure to return to custody after being discharged from RCAOA. Since West had not yet been charged with or arrested for that crime, his right to counsel had not yet attached. Accordingly, the superior court properly concluded that the troopers had no duty to contact the attorney who represented West in the other cases. Prior to trial, West also moved to sever the two charges against him, arguing that they had been improperly joined. The superior court denied West's motion. West claims that this ruling was error. Our decision in Newcomb v. State, 800 P.2d 935 (Alaska App.1990), is dispositive of West's claim. We conclude that West's charges were properly joined under Alaska Rule of Criminal Procedure 8(a)(3), and we find no error in the denial of West's motion to sever the charges as improperly joined. West next argues that the superior court erred in failing to change the venue of his trial from Fairbanks to some other community. Approximately three months before his case actually went to trial, West filed a motion for a change of venue, asserting that extensive pretrial publicity would prevent selection of an impartial jury in Fairbanks. The superior court denied West's motion without prejudice to renewal following jury voir dire. At trial, after jury voir dire, West exercised only seven of his ten peremptory challenges; he then accepted the empaneled jury and failed to renew his earlier motion to change venue. The superior court did not err in denying, without prejudice to post-voir-dire renewal, West's pre-trial motion for a change of venue: Whether pretrial publicity is so prejudicial and so pervasive that no [impartial] jury could be selected to try a particular case in a particular locale is a determination that is exceedingly difficult to make prior to the questioning of potential jurors. Therefore almost without exception trial courts have been permitted the discretion to rely on voir dire rather than their own speculation as to the impact of pretrial publicity. Mallott v. State, 608 P.2d 737, 746 (Alaska 1980); see also Chase v. State, 678 P.2d 1347, 1350 (Alaska App.1984) ("[A] trial judge will seldom be found to have abused his discretion in denying a motion for change of venue prior to jury voir dire "). West's subsequent failure to renew the motion precludes him from arguing that the court erred in failing to change venue upon conclusion of voir dire. Mallott, 608 P.2d at 748; Alexander v. State, 838 P.2d 269, 273 (Alaska App.1992); Wylie v. State, 797 P.2d 651, 656 (Alaska App.1990). The superior court did not err in failing to change venue. West lastly argues that the trial court erred in allowing Trooper McCann to testify that West had admitted killing Joe Vogler. West contends that this testimony was evidence of other misconduct, that its only relevance was to establish West's criminal propensity, and that its admission was therefore barred under Alaska Rule of Evidence 404(b). West alternatively contends that this evidence, even if marginally relevant to some issue other than criminal propensity, was unduly prejudicial and should have been excluded under Evidence Rule 403. West's argument lacks merit. At trial, West affirmatively defended against the unlawful evasion charge by claiming that his failure to turn himself in to jail was the result of a misunderstanding. West defended against the arson charge by claiming that the cabin fire was accidental. As correctly recognized by the trial court, the fact that West claimed responsibility for the death of Vogler minutes before the cabin burst into flames is highly relevant to establish West's state of mind, the absence of misunderstanding or accident, and the presence of a strong motive for West to set fire to a cabin in which he was seemingly trapped — an act of extraordinary desperation that, in the absence of some plausible motive or explanation, might easily have seemed accidental. The trial court did not abuse its discretion in concluding that this evidence was relevant for purposes other than to show West's criminal propensity; nor did the court abuse its discretion in deciding that the probative value of this evidence outweighed its potential for prejudice. The court twice gave the jury an appropriate limiting instruction. We conclude that admission of this evidence was not error. West's conviction is AFFIRMED. .West also made an unsuccessful attempt to call the lawyer who represented him in the forgery and probation revocation matters. A lawyer who shared office space with West's lawyer told West that West's lawyer was out of town and advised West to contact him when he returned. . Vogler, a well-known and controversial local political figure, had disappeared in 1993; his disappearance had received widespread publicity, and the troopers had previously questioned West in connection with Vogler's disappearance. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . See U.S. Const, amend. VI; Alaska Const, art. I, § 11. . See, e.g., United States v. Mesa, 638 F.2d 582, 589 (3rd Cir.1980); Rock v. Zimmerman, 543 F.Supp. 179, 191 (D.Pa.1982); State v. Sands, 145 Ariz. 269, 700 P.2d 1369, 1373 (1985); People v. Brewer, 720 P.2d 583, 586 (Colo.App.1985); People v. Treier, 165 Misc.2d 665, 630 N.Y.S.2d 224, 227 (N.Y.Co.Ct.1995); People v. Manzella, 150 Misc.2d 956, 571 N.Y.S.2d 875, 878-79 (N.Y.Sup.Ct.1991); State v. Pejsa, 75 Wash.App. 139, 876 P.2d 963, 969 (1994); State v. Stearns, 178 Wis.2d 845, 506 N.W.2d 165, 167 (App. 1993). . See also Maine v. Moulton, 474 U.S. 159, 180 & n. 16, 106 S.Ct. 477, 489 & n. 16, 88 L.Ed.2d 481 (1985); McLaughlin v. State, 737 P.2d 1361, 1364 (Alaska App.1987). . Nor had West retained or had an attorney appointed for him in connection with the unlawful evasion; for this reason, United States v. Thomas, 474 F.2d 110 (10th Cir.1973), which West relies on, is inapposite. Moreover, Thomas is predicated on an attorney's violation of the canons of ethics, not on a violation of the constitutional right to counsel by the police. We have never held that suppression would be an appropriate remedy for a violation of Alaska's Code of Professional Responsibility — an issue West fails to address. See Kochutin v. State, 875 P.2d 778, 780 (Alaska App.1994), adopting Kochutin v. State, 813 P.2d 298, 311 n. 5 (Alaska App.1991) (Bryner, C.J., dissenting). . Newcomb escaped from Wildwood Correctional Center. Five months later, he was located in Anchorage. In the course of his arrest, New-comb shot two officers. Newcomb was charged with attempted murder, assault, misconduct involving weapons, and escape. Newcomb, 800 P.2d at 937. Over Newcomb's objections, all charges were tried together under Alaska Rule of Criminal Procedure 8(a)(3). Newcomb appealed the denial of his motion to sever. Id. at 942. On appeal, we noted the "obvious nexus" between the escape and the other charges, and we upheld joinder of the charges as "connected together" under Rule 8(a)(3). Id. at 942-43. . Below, West contended only that severance was warranted because the two charges were improperly joined; the only theory of prejudice he advanced was that admission of evidence of his unlawful evasion would prejudice the jury's consideration of the arson charge. In his open ing brief, West renews the claim he raised below, arguing only that the two charges were improperly joined. In his reply brief, however, West belatedly suggests that severance should have been granted even if his charges were properly joined, because evidence of his arson would not have been cross-admissible against him in a separate trial for unlawful evasion. West insists, again for the first time, that joinder prejudiced his attempt to defend against the unlawful evasion charge. West does not specify how. Given West's failure to assert this argument below or in his opening brief, we decline to address it. .Pre-trial publicity relating to West's case occurred well in advance of his trial date and apparently revealed no significant information that was excluded from evidence at trial. Selection of West's jury required the questioning of only 35 prospective jurors. Although almost all members of the jury panel had heard or read something about West's case, only two panel members indicated that they had formed opinions that they could not set aside; both were disqualified for cause. As we have already mentioned. West used only seven peremptory challenges, leaving three challenges unused. These circumstances are not conducive to a finding of plain error, even assuming West's failure to renew the change of venue motion was not tactical. . A.R.E. 404(b)(1) provides: Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . A.R.E. 403 provides: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confhsion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . See Braham v. State, 571 P.2d 631, 640-41 (Alaska 1977); Milter v. State, 778 P.2d 593, 597 (Alaska App.1989); Ciervo v. State, 756 P.2d 907, 911 (Alaska App.1988).

10416834

ROGERS & BABLER, a DIVISION OF MAPCO ALASKA, INC., an Alaska Corporation, Appellant, v. STATE of Alaska, Appellee

Rogers & Babler v. State

1986-01-31

No. S-832

795

800

713 P.2d 795

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ROGERS & BABLER, a DIVISION OF MAPCO ALASKA, INC., an Alaska Corporation, Appellant, v. STATE of Alaska, Appellee.

ROGERS & BABLER, a DIVISION OF MAPCO ALASKA, INC., an Alaska Corporation, Appellant, v. STATE of Alaska, Appellee. No. S-832. Supreme Court of Alaska. Jan. 31, 1986. Rehearing Denied Feb. 21, 1986. David H. Thorsness, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellant. Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2830

17639

OPINION COMPTON, Justice. This case involves the interpretation of an indemnity provision contained in the State of Alaska's 1972 Standard Specifications for Highway Construction (1972 Standards) which was incorporated into a construction contract between the parties to this suit. The State of Alaska seeks indemnity from the general contractor for settlement and defense costs paid by the state on account of a motorcycle accident in the construction area. Contractor claims that the indemnity provision is void as being against public policy under AS 45.45.900 because it purports to indemnify the state for its sole negligence; alternatively it claims that the clause violates the "public duty" exception to the enforcement of indemnity clauses. The state was granted summary judgment and the contractor has appealed from that judgment. We affirm in part, reverse in part and remand for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND Rogers & Babler (Rogers) contracted with the State of Alaska for road construction work on the Alaska Department of Highways project "F-FG-M-0538(2) International Airport Road." Before completion of the project, Richard John DeYoung was killed in a motorcycle accident after hitting a central road divider or a "traffic island" near the intersection of Jewel Lake and International Airport Roads. The traffic island was usually protected by sawhorse type reflective barricades, but they had been knocked over by a car some hours before the motorcycle accident. Officer Kenneth D. Mitchell, an airport safety officer for the state, passed the intersection at least three times before the accident and observed that there were no barricades protecting the island. Mitchell took no action, though he was aware of both the earlier accident and of the availability of over one hundred barricades in the immediate vicinity. Furthermore, it appears that the lane markings on Jewel Lake Road ran directly into, rather than around, the traffic island. DeYoung's personal representative brought a wrongful death suit against the State of Alaska, the Municipality of Anchorage, Rogers, and other construction companies involved in the project alleging negligence in the construction, lighting, signing, and lane marking around the island. Citing an indemnification clause in the contract, the state tendered defense of the lawsuit to Rogers on three occasions, but was rejected each time. The state settled with plaintiff for $50,000 and Rogers settled with plaintiff for $75,000, and the wrongful death action was dismissed with prejudice. The state sued Rogers for $50,000 plus actual costs and attorneys fees claiming that Rogers had breached the indemnity provision in the contract by virtue of its refusal to defend, indemnify or save harmless the state from the claims brought by DeYoung's estate. The state moved for summary judgment which was granted by Superior Court Judge Karen L. Hunt. The state was awarded $50,000 plus actual costs, attorneys fees, and interest for a total award of $99,675.61. Rogers appeals the trial court's grant of summary judgment. II. DISCUSSION A. IS THE INDEMNITY PROVISION FROM THE 1972 STANDARD SPECIFICATIONS FOR HIGHWAY CONSTRUCTION NULL AND VOID BECAUSE IT PURPORTS TO INDEMNIFY THE STATE OF ALASKA FOR ITS SOLE NEGLIGENCE IN VIOLATION OF AS 45.45.900? The state claims that its right to indemnity arises from § 107-1.14 of the 1972 Standards. This section provides in part: Responsibility for Damage Claims. The Contractor shall indemnify and save harmless the Department, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damage received or sustained by any person, persons or property on account of the operations of said Contractor; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of said Contractor; . ,. Rogers contends that this indemnity provision is rendered void and unenforceable by AS 45.45.900. The statute states: Indemnification Agreements Contra to Public Policy. A provision, clause, covenant, or agreement contained in, collateral to, or affecting any construction contract which purports to indemnify the promisee against liability for damages for (1) death or bodily injury to persons, (2) injury to property, (3) design defects or (4) any other loss, damage or expense arising under (1), (2), or (3) of this section from the sole negligence or wilful misconduct of the promisee or the prom-isee's agents, servants or independent contractors who are directly responsible to the promisee, is against public policy and is void and unenforceable; however, this provision does not affect the validity of any insurance contract, workers' compensation or agreement issued by an insurer subject to the provisions of AS 21. (Emphasis added). No cases have construed the indemnity language in the 1972 Standards in light of AS 45.45.900. 1. Does the Indemnity Provision Purport to Indemnify State for its Sole Negligence? The state argues that the indemnity provision is not covered by AS 45.45.900 because the clause does not purport to indemnify the state where it is the sole cause of an accident. The state argues that "sole" negligence as used by AS 45.45.900 is not the same thing as "own negligence" as used by this court in Burgess Construction Co. v. State, 614 P.2d 1380, 1382 (Alaska 1980). Rogers argues that an indemnity clause does not have to expressly state that it covers indemnification for the indemnitee's own negligence to be covered by the statute because AS 45.45.900 reads "purport to indemnify." This court has held that an indemnity clause like this one is broad enough to cover the state for its own negligence. In Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976), this court held that the unambiguous language of indemnity clauses as reasonably construed should be given effect even if the contractual language does not contain words specifying indemnity for the indemnitee's own negligence. In light of the widespread use of insurance as a means of allocating risks among contracting parties, the court rejected the old view that clauses allowing indemnification for an indemnitee's own negligence were unenforceable and against public policy. Id. In Burgess, construing an indemnity provision very similar to the one in this case, this court affirmed summary judgment for the state stating that: [i]f we were to assume that Burgess [contractor] was fault free, the indemnity clause would still be effective as written. Most modern authorities hold that an indemnity clause such as the present one is effective to shift responsibility for an accident where the indemnitee is negligent and the indemnitor is not. 614 P.2d at 1382 (footnotes and citations omitted). In Stephan & Sons v. Municipality of Anchorage, 629 P.2d 71, 78 (Alaska 1981) the court discussed AS 45.45.900 while interpreting another indemnity clause very similar to the one in this case, but did not apply the statute because the contract in question had been entered into before the statute's effective date. Therefore, the court stated that the Burgess rule applied to construing the indemnity provision. Id. Thus, prior to the enactment of AS 45.-45.900, Manson-Osberg, Burgess and Stephan & Sons held that an indemnity provision like the one in the 1972 Standards was broad enough to indemnify the state for its own negligence even if the contractor was not negligent. We believe that the cases hold that such indemnity provisions provide for indemnification for the indemnitee's "sole" negligence, even if we did not use that exact language in prior cases. The crux of this case then is what effect the passage of AS 45.45.900 had on the indemnity provision. 2. Is the Indemnity Provision Void as Against Public Policy? Rogers states that AS 45.45.900 renders the indemnity provision from the 1972 Standards "void and unenforceable." The state says that Rogers is not arguing that AS 45.45.900 per se bars enforcement of the indemnity provision. However, the language of AS 45.45.900 could be read to imply that all such indemnity provisions are per se void because we have held that such a provision does purport to indemnify the state for its sole negligence. We are not inclined to accept a reading of the statute that would invalidate the indemnity provisions in every contract entered into between the state and construction contractors. We think AS 45.45.900 should come into effect only when it is determined, as between- the state and the contractors, that the state is solely negligent. This court has held that an ambiguous statute should be "construed in the most beneficial way the language will permit to avoid hardship, forfeiture or injustice." (Citations omitted). City of Anchorage v. Thomas, 624 P.2d 271, 273 (Alaska 1981). The indemnity provision involved here is not against public policy as a general proposition, but is only against public policy in those instances that it purports to indemnify the state for its negligence in the absence of contractor negligence. 3. Were There Genuine Issues of Material Fact Making Summary Judgment Improper With Respect to the Effect of this Indemnity Provision? Rogers claims that summary judgment was improper because the trier of fact did not allocate "percentages of causation" between the parties. If at trial the state is found to be "solely negligent", it claims that AS 45.45.900 would void the indemnity clause and leave no basis for indemnification. Rogers also claims that the accident did not occur "on account of the operations of [the] Contractor." The state argues that adopting Rogers reading of the statute and indemnity provision would frustrate settlements with third parties and thwart the intent of the parties to assign the risk of loss through contract. The state further claims that when it entered into this indemnity agreement it did not intend to contract for a lawsuit. The indemnity clause may govern in the present case if the accident occurred "on account of the operations of [the] contractor" and if it was not caused by the sole negligence of the state. The state has not established an absence of genuine issues of material fact concerning these points and a trial with respect to them will be necessary. See Civil Rule 56. B. DOES THE INDEMNITY PROVISION VIOLATE THE PUBLIC DUTY EXCEPTION TO THE GENERAL RULE ALLOWING INDEMNIFICATION FOR ONE'S OWN NEGLIGENCE? Rogers further attacks- the indemnity clause by claiming that it violates the "public duty exception" to the enforcement of contractual indemnity agreements. Rogers emphasizes the fact that DeYoung was a member of the general public and that Officer Mitchell, a state employee, noticed the missing barriers, saw other barriers in the immediate area, and did nothing to rectify the situation. In Manson-Osberg, 552 P.2d at 659-60, we acknowledged that in limited circumstances we would not give effect to contractual provisions indemnifying the indemnitee for its own negligence if it promoted breach of a duty owed to the public at large. The purposes behind the public duty exception are set forth in Burgess: The public duty exception to which we referred in Manson-Osberg is generally held applicable to public utilities and common carriers, and is based on two principles. The first is that those to whom the exception applies should guard against the consequences of their negligence at all times; indemnity agreements, or prospective releases, are thought to eliminate their incentive to do so. The second is that it is thought unfair to allow public service entities to impose liability-avoiding agreements on those they are supposed to serve, since the latter have no choice but to accept such agreements. 614 P.2d at 1381-82 (footnotes omitted). Traditionally this court has held that the public duty exception does not apply to contracts between the state and a construction contractor. Burgess, 614 P.2d 1380; Stephan & Sons, 629 P.2d 71. In Kuhn v. State, 692 P.2d 261 (Alaska 1984), we held that the public duty exception applied and voided the indemnity agreement contained in a contract between the state and travellers on the Dalton Highway, a restricted access road. In that ease, all travellers on the highway were required to sign the contract before traveling on the highway. The court contrasted Kuhn with Burgess. In Burgess, a construction company had entered into a contract with the state to build a road, a situation similar to the case now being considered. Id. at 266. Three differences highlighted by the court were that: 1. The relationship between Kuhn and the state was "that of one who furnishes public services to one who uses them." Burgess, 614 P.2d at 1382; 2. Users of the Dalton Highway were compelled to contract with the state; and 3. Highway users cannot pass on insurance costs to the state like a construction contractor may do through the bidding process. Kuhn, 692 P.2d at 266. Kuhn demonstrates that the public duty exception does not apply to this road construction contract case. First, the fact that DeYoung was a member of the public is irrelevant. Rather, we look at the two parties to the indemnity agreement to see if their relationship leads to policy reasons for using the public duty exception. Second, Officer Mitchell's actions do not give rise to the application of this exception either. His status as a state employee does not change this contract; it remains a voluntary agreement entered into between two sophisticated parties who could allocate risks and costs through the bidding process. C. DID ROGERS VIOLATE ITS CONTRACTUAL DUTY TO DEFEND AND BECOME LIABLE AS A MATTER OF LAW? The state claims that Rogers had two distinct duties: first, to defend the state against all claims, and second, to indemnify the state for all judgments rendered against it. The state analogizes to insurance cases, and claims that Rogers' wrongful refusal to defend leaves it liable for the full amount of the settlement. In response, Rogers argues that AS 45.45.900 has modified Stephan & Sons, supra, in which this court held that duties to defend and indemnify are separate and distinct, and argues that the statute has absolved Rogers of its duty to defend. This case is distinguishable from the case of Stephan & Sons. In Stephan & Sons, 629 P.2d at 72, the indemnity provision states that "[t]he contractor shall indemnify, save and hold the City harmless, and defend the City." (Emphasis added). Here the indemnity clause states that "[t]he contractor shall indemnify and save harmless the Department." The phrase "save harmless" does not imply a duty to defend, and nothing else in the clause suggest that such a duty exists. Recently this court remarked in a footnote that the language "indemnify and save harmless" obligates the indemnitor to defend and indemnify the indemnitee. CJ.M. Construction, Inc. v. Chandler Plumbing & Heating, Inc., 708 P.2d 60, n. 5 (Alaska 1985). That language was imprecise and what we intended to make clear, and what we now state, is that the language in the indemnity provision only obligates the indemnitor to reimburse the in-demnitee for the costs incurred in defending any claims. There exists no affirmative duty to defend under the language "indemnify and save harmless", but only a duty to reimburse for costs of defense, whether successful or not. This comports with the law in most jurisdictions. Shannon v. Kaiser Aluminum and Chemical Corp., 749 F.2d 689, 690-91 (11th Cir.1985); Chadwick-BaRoss v. Martin Marietta Corp., 483 A.2d 711, 717 (Me.1984); Farber v. State, 106 Idaho 677, 682 P.2d 630, 631 (1984); St. Paul Fire & Marine Ins. Co. v. Crosetti Bros., Inc., 256 Or. 576, 475 P.2d 69, 71 (1970). AFFIRMED in part, REVERSED in part and REMANDED for further proceedings. . In the most recent issue of the Standards, published in 1981, this section has been renumbered as § 107-1.13 and changed slightly. . This statute was originally passed as AS 45.47.-010 and became effective for all contracts entered into and after September 23, 1975. It was renumbered in 1980. This contract was entered into in 1977. . The court went on to quote Blackard v. City National Bank, 142 F.Supp. 753, 757 (D.Alaska 1956) where the District Court stated that: The Court cannot be unmindful of the injustices which may occur from an improper interpretation of terms and must seek, in every instance where the legislature does not speak cogently, to discover that interpretation which best fits with the ordered concepts of justice and equity in the jurisdiction. City of Anchorage v. Thomas, 624 P.2d at 273. . The state relies on Theodore v. Zurich General Accident & Liability Insurance Co., 364 P.2d 51 (Alaska 1961) for its argument that Rogers is liable for the whole settlement because of its wrongful refusal to defend. The state claims that Stephan & Sons expanded the Theodore rule from insurance cases to contractual indemnity actions. Because we hold that there was no duty to defend in this case, we do not need to reach this issue.

10373228

Doyle E. GILSTRAP, Appellant, v. INTERNATIONAL CONTRACTORS INC., and The Home Insurance Company, Appellees

Gilstrap v. International Contractors Inc.

1993-08-13

No. S-5008

1182

1186

857 P.2d 1182

857

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Doyle E. GILSTRAP, Appellant, v. INTERNATIONAL CONTRACTORS INC., and The Home Insurance Company, Appellees.

Doyle E. GILSTRAP, Appellant, v. INTERNATIONAL CONTRACTORS INC., and The Home Insurance Company, Appellees. No. S-5008. Supreme Court of Alaska. Aug. 13, 1993. Charles W. Coe, and Michael R. Smith, Anchorage, for appellant. Brooks W. Chandler, Hicks, Boyd, Chandler & Falconer, Anchorage, for appellees. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

2858

17856

OPINION PER CURIAM. The principal issue presented in this appeal is whether "substantial evidence" supports the Alaska Workers' Compensation Board's (Board) valuation of the costs of meals provided to Doyle Gilstrap while he worked for International Contractors, Inc., at a remote work site. Fairbanks North Star Borough v. Rogers & Babler, Inc., 747 P.2d 528, 533 (Alaska 1987) (when reviewing factual determinations, court will not reverse Board's decision where there is "substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the Board's conclusion"). Gilstrap challenges the Board's finding that the meals International Contractors furnished to him at Hidden Falls were worth $5.00 a day. Gilstrap argues that the Board erred in basing its valuation on a cost study offered by his employer, because the study, a determination of the price of groceries in Sitka and other Alaska towns, has little bearing on the actual cost of feeding a person doing heavy construction labor at a remote site. International Contractors argues that the Board reasonably relied on the empiri cal study of prices in Sitka, because Sitka is the town nearest to Hidden Falls and the evidence indicated that some of the food was purchased there in fact. The study, it claims, constitutes substantial evidence of Gilstrap's meal costs. International Contractors also points out that after ten years of litigation the Board had to make some finding, and that Gilstrap's testimony and other evidence was not so compelling that the Board acted unreasonably in accepting the cost study. We conclude that the cost study standing alone fails to provide substantial evidence of the true cost of Gilstrap's meals while he worked at Hidden Falls. The Board's decision demonstrates that it failed to figure reasonable transportation and food preparation costs into its calculation of meal costs. The Board awarded Gilstrap $1.43 per day for transportation costs despite the fact that no evidence was presented at the May 1990 hearing to support this figure. The only evidence of transportation costs presented at the hearing was Gilstrap's testimony that a float plane flew in groceries from Sitka for Gil-strap and his crew: "It was $160 a trip, one or two times a week." The $1.43 transportation cost figure appears to be nothing more than an arbitrary amount which was used to reach the round figure of $5.00 per day. We sympathize with the Board's plight in trying to finally resolve this case even though, by its own admission, "the evidence to support any monetary amount is such that it leads [the Board] into the realm of speculation." Gilstrap v. International Contractors, Inc., AWCB No. 81-00177 (June 13, 1990). Nonetheless, we must once again remand the case for a new hearing to determine meal costs. Gilstrap also appeals the Board's denial of his claim for a modification of his 1986 compensation award to account for alleged mistakes in the calculation of interest and depreciation. We decline to resolve on this record whether Gilstrap is time-barred from bringing his modification claim. See AS 23.30.130(a) (explicitly barring modification requests made more than "one year after the date of the last payment of compensation benefits" or more than "one year after the rejection of a claim"). However, we disagree with the Board's conclusion that it was precluded from addressing the claim by the limited scope of the superior court's remand order. Accordingly, we direct the Board to consider Gilstrap's modification request upon remand. REVERSED and REMANDED. . The cost study (conducted in 1981) put the weekly cost of groceries purchased in Sitka for a man between 20-54 years of age at $24.99. The Board arrived at the $5.00 per day figure by dividing $24.99 by seven ($3.57) and adding $1.43 per day for transportation costs. . We do not disagree with the dissent's starting point: "In order to resolve the valuation issue, I believe this court must first determine which party carried the burden of proving the value of the meals provided at Hidden Falls — Gilstrap or his employer." The dissent relies on Brunke v. Rogers & Babler, 714 P.2d 795 (Alaska 1986), in arguing that the employee — in this case, Gil-strap — shoulders the burden of proof. Brunke involved an injured employee's claim for permanent partial disability compensation (PPD). In calculating compensation for a PPD, the Board may fix a reasonable wage if the employee has no actual post-injury wages, or the employee's actual post-injury wages are below the employee's earning capacity. In making this determination, the Board focuses on the employee's actual post-injury wages, if any. In Brunke the employee offered no evidence of his actual post-injury wages. The Board denied the employee compensation for lost post-injury wages due to his PPD, apparently placing the burden of proving post-injury wages on the employee. We upheld that allocation of the burden of proof, stating: Since Alaska relies on earning capacity and not physical impairment, the impact of an unscheduled injury must be proven. The employee can best produce information of his post-injury earnings. It is not an unreasonable or unfair burden to place on the employee. The Board still retains the power to make a separate calculation if justice so requires, pursuant to the statute. Id. at 801 (emphasis added). Brunke placed the burden of proof on the employee because of the employee's unique position with regard to his i>o.sf-mjury wages. In other words, unless the employee continues his post-injury employment with the same employer, the former employer will have almost no information regarding the employee's actual post-injury earnings. The employee, conversely, will have this information. The dissent argues that Brunke supports placing the burden on the employee to prove actual pre-injury wages. We disagree that the Brunke rationale supports this conclusion. The dissent notes that "Gilstrap actually purchased the food for himself and his crew . and provided for its transportation and preparation." The applicable statute, however, provides that wages include the "reasonable value of board . received from the employer." Former AS 23.30.-265(20) (emphasis added). The employee is compensated for the value of meals "received from the employer." In order to compensate the employee for meals, the employer presumably must receive information regarding the employee's meal expenses. The employer should have roughly the same information as the employee regarding the value of meals "received from the employer." Gilstrap is unlike the employee in Brunke who could "best produce" the relevant evidence. For this reason, Brunke does not support shifting the burden of proof regarding the value of pre-injury wages to the employee. . Gilstrap argues that the valuation of his meal costs is very significant because the issue of his entitlement to permanent partial disability can be reopened if his meals are valued at a much higher rate. Gilstrap's attempt to bootstrap his way into a new disability classification plainly fails on res judicata grounds as we have already affirmed the Board's denial of his claim for permanent partial disability. See Gilstrap v. International Contractors, Inc., Mem.Op. & J. No. 448 (Alaska, April 26, 1989).

10373917

Robert O. MILLER, Appellant, v. STATE of Alaska, Appellee

Miller v. State

1993-08-27

No. 1311

1210

1211

857 P.2d 1210

857

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Robert O. MILLER, Appellant, v. STATE of Alaska, Appellee.

Robert O. MILLER, Appellant, v. STATE of Alaska, Appellee. No. 1311. Court of Appeals of Alaska. Aug. 27, 1993. Robert 0. Miller, pro se. Richard W. Maki, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

584

3698

OPINION COATS, Judge. Robert 0. Miller was convicted of burglary and assault in 1988 upon his plea of no contest. On April 20, 1993, Miller filed a pro se application for post-conviction relief. In his application, Miller alleged that the state obtained his conviction because he had received ineffective assistance of counsel. Miller filed an affidavit of indigency, requested the court to waive filing fees and costs, and asked the court to appoint counsel for him to represent him on his application for post-conviction relief. On May 10, 1993, Superior Court Judge Rene J. Gonzalez gave notice to Miller that the court intended to dismiss Miller's application unless Miller filed an application which complied with the procedural requirements of Alaska Criminal Rule 35.1 and which made out a prima facie case of ineffective assistance of counsel under the requirements of State v. Jones, 759 P.2d 558, 570 (Alaska App.1988). Judge Gonzalez stated that he would not appoint counsel for Miller until Miller's application met those procedural requirements. Miller filed a petition for review from Judge Gonzalez's order in this court. The state has opposed the petition. We grant the petition and reverse the decision of the superior court. In its opposition to Miller's petition for review, the state cites Criminal Rule 35.-1(e), which provides in relevant part: Where the court determines that the application shall not be summarily disposed of on the pleadings and record pursuant to subdivision (f) of this rule, but that the issues raised by the application require an evidentiary hearing, counsel shall be appointed to assist indigent applicants. Judge Gonzalez's decision refusing to appoint counsel for Miller conforms to the literal provisions of Criminal Rule 35.1(e). Despite the provisions of this rule, however, the Alaska Supreme Court has determined that an indigent applicant for post-conviction relief is entitled to court-appointed counsel "at the time the initial application is filed." Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973) (footnote omitted). Accord Roberts v. State, 751 P.2d 507, 507-08 (Alaska App.1988); Hampton v. Huston, 653 P.2d 1058, 1059 (Alaska App.1982). It does not appear to be disputed that Miller was financially eligible for court-appointed counsel. Miller's application appears to be a substantial effort to comply with Criminal Rule 35.1. It appears that he has reached the position where "[o]nly the presence of counsel will assure that meritorious claims will be fairly presented and full advantage taken of the procedures and investigation contemplated by the rule." Donnelly, 516 P.2d at 399. We therefore conclude that Miller was entitled to the appointment of counsel. The order of the superior court giving notice of its intent to dismiss is VACATED. This case is REMANDED with directions that the superior court appoint counsel to represent Miller in pursuing his application for post-conviction relief. . Apart from the provisions of Criminal Rule 35.1(e), Criminal Rule 35.1(d) authorizes the court to return "applications which are incom-plete_" This provision appears to be aimed at the type of technical incompleteness that could be readily corrected by pro se applicants. We do not construe Donnelly to require appointment of counsel prior to the return of an application that is incomplete in this sense.

10373773

Michael Shane KOLKMAN, Appellant, v. STATE of Alaska, Appellee

Kolkman v. State

1993-08-13

No. 1310

1202

1210

857 P.2d 1202

857

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Michael Shane KOLKMAN, Appellant, v. STATE of Alaska, Appellee.

Michael Shane KOLKMAN, Appellant, v. STATE of Alaska, Appellee. No. 1310. Court of Appeals of Alaska. Aug. 13, 1993. Robert E. Meachum, Asst. Public Defender, Juneau, and John B. Salemi, Public Defender, Anchorage, for appellant. Eric A. Johnson, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

4715

28849

OPINION BRYNER, Chief Judge. Michael Shane Kolkman appeals his conviction of one count of attempted sexual assault in the first degree, contending that Superior Court Judge Larry R. Weeks erred in denying him the opportunity to withdraw the plea of no contest upon which his conviction was based. Kolkman also contends that his sentence of twenty years with five years suspended is excessive. We remand for additional proceedings. As a result of incidents involving the sexual abuse of three minors, Kolkman was originally charged by indictment with multiple counts of first-degree sexual assault and second-degree sexual abuse of a minor. Kolkman eventually entered into an agreement with the state that called for him to plead no contest to an information charging him with one count of attempted first-degree sexual assault, a class A felony, AS 11.41.410(a)(1) & (b); AS 11.31.-100(a) & (d)(2), and two counts of second-degree sexual abuse of a minor, class B felonies, AS 11.41.436(a)(2) & (b). In return for Kolkman's no contest pleas, the state agreed that all other charges would be dismissed and that Kolkman would receive a total sentence of no more than thirty years with sixteen suspended. This agreement was based on the assumption that Kolkman was a second felony offender and would therefore be subject to presumptive terms of ten years for attempted first-degree sexual assault, AS 12.-55.125(c)(3), and four years for second-degree sexual abuse of a minor, AS 12.55.-125(d)(1). The agreement provided that if the state established aggravating factors, the sentencing court could enhance the applicable presumptive terms only with suspended incarceration; if Kolkman established mitigating factors, the court would have discretion to reduce the presumptive terms within legal limits. The agreement further specified that Kolkman's two sentences for second-degree sexual abuse would be imposed concurrently with each other and that the sentencing court would retain discretion to impose those sentences consecutively to or concurrently with the sentence for attempted first-degree sexual assault. The parties disclosed their plea bargain during a change of plea hearing conducted before Judge Weeks. Judge Weeks accepted no contest pleas from Kolkman in accordance with the terms of the agreement, ordered a presentence report, and scheduled Kolkman's case for sentencing. The probation officer assigned to write Kolkman's presentence report discovered that Kolkman had at least two prior felony convictions, not one, as originally assumed. By virtue of the additional prior felony conviction, Kolkman became subject to a presumptive term of fifteen years instead of ten years for attempted first-degree sexual assault and to presumptive terms of six years instead of four years for the two second-degree sexual abuse cases. AS 12.-55.125(e)(4) & (d)(2). At the time set for the sentencing hearing, the state disclosed this information to the court, indicating that it was uncertain how the plea bargain should be dealt with in light of the increased presumptive terms that would apparently apply to the ease. Kolkman's counsel indicated that he needed additional time to determine Kolkman's position. Counsel observed that Kolkman wanted to "go forward with the sentencing" under the original agreement and "should be entitled to the benefit of the bargain, . and if not, should be allowed to withdraw his plea." Judge Weeks ordered the matter postponed to allow counsel to file a motion seeking whatever relief appeared to be appropriate. Kolkman's counsel thereafter filed a motion for enforcement of the original plea bargain, maintaining that, despite having a full opportunity to ascertain Kolkman's criminal history before entering into the plea bargain, the state had simply failed to make a diligent inquiry in agreeing that he should be sentenced as a second felony offender. In Kolkman's view, the state was estopped from seeking a different disposition, even if Kolkman's additional prior conviction triggered a presumptive term exceeding the fourteen-year limit on unsus-pended incarceration that the parties had agreed upon. In response to Kolkman's motion to enforce the plea agreement, the state argued that, because the sentences originally bargained for were more lenient than the presumptive terms actually applicable to Kolk-man by virtue of his prior convictions, enforcement of the plea bargain would result in an illegal sentence. The state pointed out that Alaska's presumptive sentencing statutes are mandatory and cannot be disregarded, even with the agreement of the parties. See, e.g., State v. Price, 715 P.2d 1183, 1185 (Alaska App.1986); Hartley v. State, 653 P.2d 1052, 1055-56 (Alaska App.1982). In the state's view, Judge Weeks was required to reject the original plea bargain for this reason. After hearing argument on Kolkman's motion and the state's response, Judge Weeks declined to enforce the original agreement, finding, "I don't think the Court has the power to impose a sentence in accordance with the plea agreement when that sentence is contrary to the law." Judge Weeks went on to say, "I don't know what that means with respect to withdrawing the plea or not. I guess I think that's the next step." Kolkman's counsel 'asked for "some time to sit down and talk to my client and advise him as to what he should do at this point." Judge Weeks granted counsel's request for a continuance. Approximately a month later, the state filed a motion to calendar Kolkman's case for a sentencing hearing, stating that the case was "ripe for sentencing." Kolk-man's counsel disagreed. Counsel claimed that scheduling a sentencing hearing would be premature because Kolkman was still free to withdraw his no contest plea in light of the court's decision not to enforce the original plea bargain. Counsel further expressed doubt about his ability to continue representing Kolkman, noting that Kolk-man had recently filed a grievance against him with the Alaska Bar Association. Several days later, Kolkman's counsel formally moved to withdraw from the case, citing Kolkman's grievance to the bar association and a strained attorney-client rela tionship as the reasons for withdrawal. In a supporting affidavit, counsel revealed that, after rejection of the original plea agreement, he had negotiated another agreement that was "roughly equivalent," but that Kolkman was "unwilling to accept that plea agreement and believes that it is my fault that he is in the predicament that he is in." Judge Weeks held an ex parte hearing on Kolkman's counsel's withdrawal motion; Kolkman and an associate of Kolkman's counsel attended. Kolkman confirmed that he was dissatisfied with his current attorney and did not think his attorney would defend him to the best of his ability. In the course of the hearing, although Judge Weeks repeatedly said he thought a plea agreement like the one Kolkman's counsel was attempting to negotiate would be advantageous to Kolkman, the judge also repeatedly told Kolkman that he had "an absolute right to go to trial." At one point, Judge Weeks asked Kolkman if "that's what you want to do in this case." Kolkman replied, "[It's] looking like that, yes." Kolkman further assured the judge that he understood he might receive a substantially higher sentence if he went to trial than if he accepted a negotiated disposition. At the conclusion of the ex parte hearing, Judge Weeks granted Kolkman's counsel's motion to withdraw, appointed a new attorney to represent Kolkman, and set the case for a calendar call hearing. Before appointing Kolkman's new counsel, Judge Weeks commented: "If . that attorney makes a motion to withdraw the plea, the Court will consider that and decide whether or not to allow you to withdraw the plea. If there is a withdrawal that's allowed, a trial will be set immediately.... So you've got to decide that." At the calendar call hearing, although Kolkman claimed to be dissatisfied with his newly appointed counsel, Judge Weeks expressed confidence in the abilities of Kolk-man's new counsel and stated that proceedings would go forward with the new attorney representing Kolkman. Judge Weeks informed Kolkman, "I'm going to set the matter on for sentencing next week and unless something happens between now and next week you're going to be sentenced under the entry of a plea." Kolk-man's new attorney requested a slightly longer period before the sentencing hearing, telling the court that he had not yet had a chance to discuss the possibility of a new plea agreement with Kolkman. Judge Weeks granted the request. At the sentencing hearing, Kolkman's new counsel informed Judge Weeks that he (counsel) was ready to proceed but that Kolkman was not. Counsel revealed that the state had offered a new plea agreement, which called for Kolkman to maintain his no contest plea only as to the class A felony of attempted first-degree sexual assault; in return, the state would dismiss the two counts of second-degree abuse of a minor to which Kolkman had originally pled. According to counsel, under the terms of the new agreement, Kolkman would receive the third-offense presumptive term of fifteen years, see AS 12.55.-125(c)(4), and, in addition, up to five years of suspended incarceration at the court's discretion if the state established aggravating factors. Counsel further stated that he had spoken with Kolkman about the new proposal the previous week and that Kolkman had indicated that it "would be fine with him." Nevertheless, according to counsel, Kolk-man "indicated to me today that he basically did not want to accept that, that he wanted a trial." Counsel questioned the wisdom of Kolkman's "radical change in position." Noting that the presentence report contained "indications of prior mental illness on Mr. Kolkman's part," counsel expressed concern about Kolkman's competence. In response to counsel's remarks, Judge Weeks stated: "To the extent that what you say is a motion to withdraw the plea, I deny the motion." Judge Weeks also found, based on his own observations of Kolkman and his review of the psychological information in the presentence report, that Kolkman was competent to proceed. The court then proceeded with the sentencing hearing, initially requesting the prosecutor to provide a justification for the revised plea agreement that Kolkman's attorney had described. After the prosecutor informed the court that the state entered into the agreement because Kolk-man's victims were reluctant to testify, the court turned to the issue of aggravating and mitigating factors, finding five aggravating factors and one mitigating factor. Judge Weeks then called on the parties for their sentencing arguments. The prosecutor, in accordance with the terms of the new plea agreement, asked the court to sentence Kolkman to twenty years with five years suspended on the attempted first-degree sexual assault charge. When Judge Weeks inquired about the disposition of the remaining two counts of second-degree sexual abuse of a minor, however, the prosecutor expressed uncertainty, saying "I haven't really thought of where we sat on that." The prosecutor explained that he had told Kolkman's counsel that he would not dismiss the two class B felonies if Kolkman moved to withdraw his plea and that Kolkman had "in effect moved to withdraw his plea." The prosecutor was nevertheless unsure whether the remarks by Kolkman's counsel, which the court had treated as a motion to withdraw Kolkman's no contest pleas, had actually been intended as such. Kolkman's counsel, evidently intent on seeing the class B felonies dismissed, assured the state that he had not meant to move for withdrawal of Kolkman's pleas: "Well I certainly — I mean that didn't come out of my mouth. I mean that might have been what was interpreted.... I mean I did tell the Court what Mr. Kolkman had told me and that was that he didn't want to go to sentencing today.... I was just telling the Court . what his change of position was." This apparently placated the prosecutor. Prior to imposing sentence, Judge Weeks called on Kolkman for allocution. Kolk-man complained that "everybody is trying to point to me like I'm . such a so-called criminal," and said that "[i]f I really knew that there was going to be a sentencing hearing today I'd of called some more witnesses. ." This prompted Judge Weeks to ask, "Do you want to be sentenced today under the agreement of being sentenced on the one count with a maximum of twenty years with fifteen presumptive?" Kolk-man answered: "Well I like to — I would have liked to been more prepared but if that's what the Court wishes then I have to — fine." Without further inquiry, Judge Weeks sentenced Kolkman to twenty years in jail with five years suspended. After imposing the sentence, the judge apprised Kolkman of his sentence appeal rights but commented that, "[i]t is my opinion that because of your plea agreement you don't have a right to appeal your sentence." Kolkman nevertheless appealed. On appeal, Kolkman argues that the superior court erred in failing to allow him to withdraw his pleas of no contest. In advancing this argument, Kolkman relies exclusively on Alaska Criminal Rule 11(h)(1), which requires the court to allow withdrawal of a plea of no contest upon the filing of a "timely motion" establishing that withdrawal is necessary to correct manifest injustice. The rule specifies, in relevant part, that manifest injustice exists whenever a defendant who has failed to receive "concessions contemplated by [a] plea agreement" demonstrates either that the prosecutor "failed to seek or oppose[d] the concessions promised" or that "after being advised that the court no longer concurred and after being called upon to affirm or withdraw the plea, the defendant did not affirm the plea." Criminal Rule ll(h)(l)(ii)(dd). To this argument, the state accurately responds that Criminal Rule 11(h) requires the filing of a timely motion to withdraw and that Kolkman never filed such a motion. While acknowledging that, during the ex parte hearing concerning Kolkman's representation, Kolkman personally informed the court that he wanted a trial, the state insists that this request was ineffectual because it was not communicated through counsel: "[I]t . was for counsel, not the court, to ascertain Kolk-man's wishes and take appropriate action. When the opportunity arose to act, defense counsel declined." This argument, however, fundamentally confuses the roles of the accused, the accused's counsel, and the trial court in situations involving a rejected plea agreement. Such situations are governed, not by Criminal Rule 11(h), but rather by Criminal Rule 11(e), which specifically prescribes the procedures to be followed in cases involving plea agreements. Criminal Rule 11(e)(1) and (2) authorize the parties in a criminal case to engage in plea bargaining but require the terms of any agreement to be disclosed on the open record to the trial court. When this occurs, the court has three options: it "may accept or reject the agreement, or may defer its decision . until receipt of a presentence report." Rule 11(e)(3) deals with cases in which the court accepts plea agreements, providing that "the court shall inform the defendant that the judgment and sentence will embody either the disposition provided for in the plea agreement or another disposition more favorable." Rule 11(e)(4) — the crucial provision here — requires the following action in cases involving rejected agreements: If the court rejects the plea agreement, the court shall inform the parties of this fact and advise the defendant personally in open court that the court is not bound by the plea agreement. The court shall then afford the defendant the opportunity to withdraw his plea, and advise the defendant that if he persists in his plea of guilty or nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement. Under this rule, upon rejection of a proposed plea agreement, withdrawal of a plea of guilty or no contest becomes a matter of right for the defendant, not one of discretion for the court. The rule requires the court to do more than provide an opportunity for the defense to move for plea withdrawal under Rule 11(h). The plain language of the rule demands that the court "afford the defendant the opportunity to withdraw"; this opportunity must be extended, not to defense counsel, but rather to "the defendant personally in open court." Unless the defendant affirmatively and unequivocally expresses the desire to persist in the original plea of guilty or no contest, no judgment may be entered on the plea. The court's obligation to extend the right of withdrawal to the defendant personally, in open court, and its concomitant obligation to secure the defendant's affirmative decision to persist in the original plea before entering judgment on it, devolve from the court's fundamental duty to assure that pleas of guilty or no contest be voluntarily and intelligently entered. The ultimate decision on what plea to enter to a criminal charge is one that must be made personally by the defendant; it cannot be left to counsel. See Alaska Rule of Professional Conduct 1.2(a). See also I ABA Standards for Criminal Justice § 4-5.2(a)(i) (2d ed. 1979). For this reason, before the court initially accepts a plea of guilty or no contest, it must inquire of the defendant personally to assure that the plea reflects the defendant's true decision and that the defendant has made this decision voluntarily and intelligently. See Criminal Rule 11(c) and (d). The rejection of a negotiated plea of guilty or no contest rekindles the same concerns for the voluntariness and intelligence of the defendant's actions that are sparked by entry of the initial plea. A defendant who pleads guilty or no contest pursuant to a plea agreement conditions that plea on the assumption that the terms of the agreement will be fulfilled; the vol-untariness and intelligence of the plea depend upon fulfillment of the agreement. When the court rejects a plea agreement, its action necessarily vitiates the voluntariness and intelligence of the underlying plea, effectively rendering the plea a nullity. This, in turn, requires that the defendant be given the opportunity to withdraw or affirm the original plea of guilty or no contest — the requirement reflected in the language of Criminal Rule 11(e)(4). Just as the defendant must confirm the initial decision to plead guilty or no contest in accordance with the terms of an agreement personally and in open court, so must the defendant, upon a subsequent rejection of the agreement, personally affirm the decision to persist in the original plea, despite the change in circumstances; the record of proceedings must unequivocally reflect that the defendant's affirmation has been made voluntarily and intelligently. Counsel's power to plead guilty or no contest on behalf of the defendant should be no greater after rejection of a plea agreement than it was at the inception of the case. In this case, Kolkman's initial pleas of no contest were expressly conditioned on fulfillment of the original plea agreement. Upon ruling that the agreement called for imposition of an illegal sentence, the court rejected it. At that point, the court was obligated to afford Kolkman the opportunity to withdraw his pleas. Criminal Rule 11(e)(4). Yet at no point did the court afford that right to Kolkman "personally in open court." Instead, it left the choice to Kolkman's counsel. Despite Kolkman's earlier statement to the court that he wanted a trial, and despite his counsel's statement at the sentencing hearing that Kolkman was not willing to agree to the amended plea bargain the state had recently proposed, the court denied Kolkman the opportunity to withdraw his original pleas and held him to the terms of the amended bargain — evidently on the basis of Kolkman's informal, off-the-record approval of the bargain during a conversation with his counsel the previous week. The record as it currently stands does not reflect a voluntary and intelligent waiver by Kolkman of the right to withdraw his no contest pleas following. the court's rejection of the original plea agreement; nor does it reflect a decision by Kolkman to persist in his original no contest pleas. The actions and inactions of Kolkman's counsel are no substitute for Kolkman's personal affirmation of the original pleas; nor can any binding decision to adhere to the original pleas be inferred from counsel's statement that Kolkman had assented to the amended plea agreement in previous, out-of-court conversations. Similarly, Kolkman's ambiguous response at the sentencing hearing to the court's inquiry as to whether he wanted to be sentenced under the newly offered agreement ("I would have liked to been more prepared but if that's what the Court wishes then I have to — fine.") cannot be construed as a voluntary and intelligent election to persist in the original no contest pleas. In the absence of a valid, on-the-record election by Kolkman to persist in his original pleas and refrain from exercising his right of withdrawal, we must conclude that the superior court erred in holding Kolk-man to the terms of the amended plea bargain and in entering judgment on the no contest pleas Kolkman entered in anticipation of the initial, failed plea agreement. The judgment of conviction is VACATED, and this case is REMANDED with directions that Kolkman be afforded the opportunity to withdraw his pleas of no contest. . Kolkman's counsel was evidently unavailable at the time, and his associate substituted for him for purposes of the hearing. . Alaska Criminal Rule 11(h) states: (h) Plea Withdrawal. (1) The court shall allow the defendant to withdraw his plea of guilty or nolo contende-re whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct manifest injustice. (i) A motion for withdrawal is timely and is not barred because made subsequent to judgment or sentence if it is made with due diligence. (ii) Withdrawal is necessary to correct a manifest injustice whenever it is demonstrated that: (aa) The defendant was denied the effective assistance of counsel guaranteed by constitution, statute or rule, or (bb) The plea was not entered or ratified by the defendant or a person authorized to act in the defendant's behalf, or (cc) The plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed, or (dd) The defendant did not receive the charge or sentence concessions contemplated by the plea agreement, and (A) the prosecuting attorney failed to seek or opposed the concessions promised in the plea agreement, or (B) after being advised that the court no longer concurred and after being called upon to affirm or withdraw the plea, the defendant did not affirm the plea. (iii) The defendant may move for withdrawal of the plea without alleging innocence of the charge to which the plea has been entered. (2) Once the plea has been accepted by the court and absent a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty or nolo contendere as a matter of right. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea. (3) A plea of guilty or nolo contendere which is not accepted or has been withdrawn shall not be received against the defendant in any criminal proceeding. . The full text of Criminal Rule 11(e) is as follows: (e) Plea Agreement Procedure. (1)In General. The attorney for the state and the attorney for the defendant may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the state will move for dismissal of other charges, or will recommend or not oppose the imposition of a particular sentence, or will do both. (2) Notice of Such Agreement. If the parties reach a plea agreement whereby a plea of guilty or nolo contendere will be entered by the defendant in the expectation that a specific sentence will be imposed or other charges before the court will be dismissed, then the court shall require the disclosure of the agreement in open court at the time the plea is offered. Once the agreement has been disclosed the court may accept or reject the agreement, or may defer its decision to accept or reject the agreement until receipt of a pre-sentence report. (3) Acceptance of Plea. If the court accepts the plea agreement, the court shall inform the defendant that the judgment and sentence will embody either the disposition provided for in the plea agreement or another disposition more favorable to the defendant. (4) Rejection of Plea. If the court rejects the plea agreement, the court shall inform the parties of this fact and advise the defendant personally in open court that the court is not bound by the plea agreement. The court shall then afford the defendant the opportunity to withdraw his plea, and advise the defendant that if he persists in his plea of guilty or nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement. (5) Time of Plea Agreement Procedure. Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court. (6) Inadmissibility of Plea Discussions in Other Proceedings. Neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal or civil action or administrative proceeding if: (i) a plea discussion does not result in a plea of guilty, or (ii) a plea of guilty is not accepted or is withdrawn, or (iii) judgment on a plea of guilty is reversed on direct or collateral review. . See generally 1 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 175.1, at 646-47 (2d ed. 1982). . Criminal Rule 11(c) and (d) provide: (c) Pleas of Guilty or Nolo Contendere. The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and (1) determining that he understands the nature of the charge; and (2) informing him that by his plea of guilty or nolo contendere he waives his right to trial by jury or trial by a judge and the right to be confronted with the witnesses against him; and (3) informing him: (i) of the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered, and (ii) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, or to plead guilty. (d) Insuring That the Plea Is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire of the prosecuting attorney, defense counsel and the defendant himself to determine whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the state and the defendant or his attorney. A similar inquiry is called for before the court imposes a sentence based on such a plea. See Criminal Rule 32(a): Sentence shall be imposed without unreasonable delay. Sentencing in felony cases shall follow the procedures established in this rule and Rules 32.1 through 32.5. Sentencing in misdemeanor cases shall follow the procedures established in this rule and Rules 32.-2(b) — (f), 32.3, and 32.5. . See Padie v. State, 594 P.2d 50, 58 (Alaska 1979); Cooksey v. State, 524 P.2d 1251, 1256 (Alaska 1974). Cf. United States v. Kerdachi, 756 F.2d 349, 352 (5th Cir.1985) ("A guilty plea is not voluntary if it is based on a misapprehension of a significant term of a plea agreement").

10356426

Judith M. RICH, Guardian Ad Litem Services, Inc., Appellant, v. DENISE M. BERRY and ROBERT T. BERRY, Appellees

Rich v. Berry

1993-08-06

No. S-5057

341

345

857 P.2d 341

857

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Judith M. RICH, Guardian Ad Litem Services, Inc., Appellant, v. DENISE M. BERRY and ROBERT T. BERRY, Appellees.

Judith M. RICH, Guardian Ad Litem Services, Inc., Appellant, v. DENISE M. BERRY and ROBERT T. BERRY, Appellees. No. S-5057. Supreme Court of Alaska. Aug. 6, 1993. Vincent P. Vitale, Anchorage, for appellant. William T. Ford, Anchorage, for appellee, Robert T. Berry. Allison E. Mendel, Anchorage, for appel-lee, Denise M. Berry. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

2222

13464

OPINION RABINO WITZ, Justice. This appeal concerns a dispute regarding a non-attorney guardian ad litem's claim for attorney's fees and costs incurred in a prior appeal to this court. I. FACTS AND PRIOR PROCEEDINGS Denise M. Berry and Robert T. (Tom) Berry married and had two children. Denise Berry subsequently filed a Complaint for Divorce. Custody of the two children was contested. In November of 1989, Denise and Tom Berry executed a "Stipulation for Appointment of a Guardian Ad Litem" which reads in part: "[The parties] hereby stipulate to the appointment of a guardian ad litem.... The parties have agreed that [Judith Rich] shall be appointed." Rich was not an attorney. By order dated November 22, 1989, the superior court appointed Rich as guardian ad litem for the two children. Denise Berry and Tom Berry were divorced on September 14, 1990. The issues of child custody, support, and property division were reserved for a subsequent proceeding. On November 27, 1990, the superior court granted sole legal and physical custody of the children to Tom Berry. Its decree was based in part on Rich's recommendation. In regard to the guardian ad litem, the superior court in its findings of fact stated: The Guardian Ad Litem is discharged after all post-trial motions have been ruled on and time for appeal has expired. She should submit a final billing to the court and to TOM BERRY's counsel. Denise Berry then appealed to this court from the Decree of Divorce. Her points on appeal included challenges to the role that Rich had played in the case and to the superior court's custody determination. While the appeal was pending before this court Rich moved for an award of fees and costs to defend the superior court's child custody determination. Rich noted in her affidavit in support of the motion that she had retained legal counsel to represent herself, and explained: Since the basis of MS. BERRY's appeal is an attack on the role of the Guardian Ad Litem [sic], I retained legal counsel to represent the Guardian Ad Litem in the appellate proceedings. As the party in the trial proceedings who was charged with the duty to advocate for the best interests of the children, I can best defend the record on appeal as it supports this Court's child custody determination. Also in her affidavit, Rich requested that the superior court declare Denise Berry and Tom Berry to be jointly and severally liable "for all legal fees and costs incurred on behalf of the Guardian Ad Litem in the superior court and in the Alaska Supreme Court," and that the superior court order Denise Berry and Tom Berry to establish a $5,000 "interim trust fund deposit" for such expenses. Both Denise Berry and Tom Berry opposed Rich's motion. They argued that the children did not need independent representation in connection with the pending appeal to this court. Tom Berry noted that both he and Denise Berry were already incurring costs for their own independent counsel, and that they did not have the resources to pay for Rich's attorney. Additionally, Tom noted that his own attorney was capable of defending the superior court's custody determinations and eviden-tiary rulings. Denise Berry agreed with her ex-husband's position and observed: "The guardian, if she feels a personal or professional need to defend her actions in the court below, should be free to participate in the litigation at her own expense." The superior court then entered an order granting what it termed the "Motion for An Award of Fees and Costs filed on behalf of the Guardian Ad Litem." Its order stated that Ms. Berry and Mr. Berry would be jointly and severally liable "for all fees and costs incurred on behalf of the Guardian Ad Litem in the [sic] these superior court proceedings and in the Alaska Supreme Court proceedings.... " The order further provided that the Berrys were each required to tender $750 to Guardian Ad Litem Services, Inc. by May 1, 1991. On November 20, 1991, this court issued a Memorandum Opinion and Judgment noting that Denise Berry had waived her right to appeal any error in the guardian's role in the proceedings which were held before the superior court, that there was no evidence of plain error which would negate this waiver, and that the superior court's custody determination was not clearly erroneous. On the same day, Rich moved, pursuant to AS 25.24.310, to reduce to judgment $6,523.65 in attorney's costs and fees incurred in connection with the appeal. In its Decision and Order on the guardian's motion for attorney's fees and costs, the superior court noted: The court's prior ruling that the parent's [sic] be liable for the Guardian Ad Litem's attorney fees is necessarily limited to reasonable fees. Further, this court considers it unreasonable for the guardian to exceed expenditures in the amount ordered deposited without seeking for that authority from the court. Consider, the standard in Admin.Rule 12. Therefore, it is hereby ordered that the Berry's [sic] are to pay the $750.00 apiece previously ordered in support of the Guardian Ad Litem's fees. This appeal followed. II. DISCUSSION Alaska Statute 25.24.310(c) sets out the requirements for the appointment of a guardian ad litem. In relevant part the statute provides: [T]he court may, upon the motion of either party or upon its own motion, appoint an attorney or other person or the office of public advocacy to provide guardian ad litem services to a minor in any legal proceedings involving the minor's welfare. The court shall require a guardian ad litem when, in the opinion of the court, representation of the minor's best interests . would serve the welfare of the minor. The court in its order appointing a guardian ad litem shall limit the duration of the appointment of the guardian ad litem to the pendency of the legal proceedings affecting the minor's interests, and shall outline the guardian ad litem's responsibilities and limit the authority to those matters related to the guardian's effective representation of the minor's best interests in the pending legal proceeding.... When custody, support, or visitation is at issue in a divorce, it is the responsibility of the parties or their counsel to notify the court that such a matter is at issue. Upon notification, the court shall determine if the minor's best interests need representation or if the minor needs other services and shall make a finding on the record before trial. The statute contains the following procedural steps relevant to our disposition of this appeal: (1) The parties or their counsel must notify the court if custody, support, or visitation is at issue, (2) The court must then enter findings on the record as to whether the minor's best interests and welfare require the services of a guardian ad litem. (3) In the event a guardian ad litem is appointed the court must outline the scope of the guardian's responsibilities which must be limited to the guard ian's effective representation of the minor's best interests. In our opinion the superior court failed to proceed in accordance with the requirements of AS 25.24.310(c) in regard to its implied appointment of Rich as guardian ad litem in the Berry v. Berry appeal to this court. The most significant omission on the superior court's part was its failure to make a finding on the record that the minor children's best interest and welfare required the services of a guardian in connection with Denise Berry's appeal to this court. The record is simply devoid of any articulated explanation as to why the superior court concluded it was necessary that Rich be appointed guardian ad litem to represent the children in the Berry v. Berry appeal. Furthermore, the parameters of Rich's responsibilities and authority in effectively representing the children's best interests in the appeal were never outlined by the superior court. Instead the court merely noted that the parents would be jointly and severally liable for all costs incurred on the guardian's behalf in both the superior court and supreme court proceedings. In light of the foregoing we conclude that the superior court's April 5,1991 order awarding fees to the guardian ad litem must be VACATED. The case is REMANDED for further proceedings in accordance with this opinion. . Rich's total costs for the first trial were $9,975, all of which have been paid. . The full text of the motion was as follows: "COMES NOW JUDITH M. RICH, of Guardian Ad Litem Services, Inc., by and through her attorneys, the Law Offices of Janet D. Platt, and hereby moves this Court for an award of fees and costs for the court appointed Guardian Ad Litem to defend the child custody determination issued by this Court. This motion is supported by the attached memorandum, exhibits, and Affidavit of Judith M. Rich." . Rich lists one point on appeal: "That the trial court erred as a matter of fact and law in denying the Guardian Ad Litem's request to enter a judgment against the Plaintiff and Defendant for attorney's fees and costs incurred and paid for by the Guardian Ad Litem." . Compare Administrative Rule 12(c)(1) which provides: Appointment Procedure. When a person qualifies for counsel or guardian ad litem services under AS 44.21.410, the court shall appoint the office of public advocacy. The court in its order appointing the office of public advocacy must state the authority for the appointment. In the case of a discretionary appointment, the court must give specific reasons for the appointment. In the case of a guardian ad litem appointment, the court shall limit the appointment to the pendency of the proceedings affecting the child's welfare, shall outline the guardian ad litem's responsibilities, and shall limit the guardian's authority to those matters related to the guardian's effective representation of the minor's best interests. . As noted above the superior court's order of April 25, 1991 provided in part that the Berrys "shall be jointly and severally liable for all fees and costs incurred on behalf of the GAL in [these] superior court proceedings and in the Alaska Supreme Court proceedings." (Emphasis supplied.) . A second separate appointment was necessary under the specific delineation of guardian duties provisions of AS 25.24.310(c), as well as under the express terms of the superior court's findings of fact in the divorce proceedings, which provided that Rich was discharged "after all post-trial motions have been ruled on and time for appeal has expired." . The procedural requirements of AS 25.24.-310(c) are designed to ensure that careful consideration is given to the best interest and welfare of the child in the appointment of a guardian, and the delineation of the guardian's specific role. As noted previously, there is no record evidence that any such consideration of the relevant criteria was undertaken by the superior court, despite considerable evidence in the record indicating that the children's best interests and welfare did not require the appointment of a guardian in the Berry v. Berry appeal. This evidence consists in part of the following: First, Tom Berry and Denise Berry were people of limited means. The court had knowledge of this fact, as it had recently ordered distribution of the marital estate. Both Tom Berry and Denise Berry had indicated to the superior court in their opposition to the motion for costs for Rich and her counsel to defend the appeal in Berry v. Berry that cost was a key concern. It has been observed that the guardian "must consider the broad best interests of the child . the representative must keep in mind the long-term impact of his action on the child." 2 Jeff Atkinson, Modern Child Custody Practice § 13.02 (1986), at 697. Similarly, the superior court, in appointing a guardian, should have had in mind similar considerations, which would include the parents' ability to provide for their children once the legal proceedings were resolved. The obvious connection between ordering the parties to spend any more money, and their subsequent ability to care for the children should have been considered by the superior court. Second, as Tom Berry observes, the children's interests in the appeal were aligned with those of their father. A proper consideration of the children's needs for representation in the first appeal should have revealed this fact. As we observed in Veazey v. Veazey, 560 P.2d 382 (Alaska 1977), "[T]here will be many custody cases in which a guardian will not be needed, and in such cases neither the statute, the court rules, nor our decisions compel the court to waste its time and money, as well as that of the parties and counsel, in employing one." Id. at 385. The superior court had followed the guardian's custodial recommendations, and accordingly, Tom Berry would be defending the guardian's custodial recommendations. Berry argues that in his opposition to Rich's motion for costs, he had observed that his own counsel necessarily would be defending the superior court's decision. The factual record already was developed fully.

10373494

Dale CALHOUN and Joyce Calhoun d/b/a Paramount General Construction Company, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee

Calhoun v. State, Department of Transportation & Public Facilities

1993-08-20

No. S-5203

1191

1196

857 P.2d 1191

857

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Dale CALHOUN and Joyce Calhoun d/b/a Paramount General Construction Company, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee.

Dale CALHOUN and Joyce Calhoun d/b/a Paramount General Construction Company, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee. No. S-5203. Supreme Court of Alaska. Aug. 20, 1993. Rehearing Denied Sept. 21, 1993. Dale Calhoun, pro se, for appellants. Paul R. Lyle, Asst. Atty. Gen., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

3023

19179

OPINION RABINO WITZ, Justice. I. INTRODUCTION Calhoun, a construction contractor, appeals from a grant of summary judgment in favor of the State. The superior court held that Calhoun's claims against the state were barred under the doctrine of res judi-cata. We affirm. II. FACTS AND PROCEEDINGS In 1985, the Calhouns, d/b/a Paramount Construction, ("Calhoun") and the State of Alaska, Department of Transportation and Public Facilities ("DOT & PF") entered into a contract for the construction of a hangar and a generator in Coldfoot. The contract contained a claims and dispute resolution provision. Throughout construction there were numerous disputes between Calhoun, DOT & PF, the subcontractors and the designers. In April 1987, Calhoun submitted a claim for additional costs and other charges, in the sum of $309,556.55, to DOT & PF's contracting officer. On July 30, 1987, Calhoun received a letter from his surety, USF & G. The letter stated that the surety believed that Calhoun's account was no longer viable and that it would limit bonding of Calhoun to single jobs up to $100,000. After receiving this letter, Calhoun initiated a series of correspondence with DOT & PF. Calhoun claimed that the DOT & PF's failure to pay Calhoun's additional costs resulted in his loss of bonding and impaired his ability to conduct business. In the course of the correspondence, Calhoun inquired whether the contracting officer had authority to adjudicate the bonding claim. After receiving clarification from Calhoun concerning the claim, the contracting officer informed Calhoun that "the claim regarding bonding problems [was] one which must be ruled upon by the Contracting Officer." Calhoun indicated he did not believe this claim could be handled by the claims process, and thus never submitted the bonding claim to the contracting officer for adjudication. In February 1988, the contracting officer denied all of the claims Calhoun had submitted in April 1987 except one $380 item. In November 1988, Calhoun filed a complaint in the superior court alleging, among other things: breach of contract; new and different contract; unjust enrichment/quantum meruit; and the surety bond loss claim. In September 1989, the superior court dismissed Calhoun's 1988 complaint, holding that Calhoun should have taken an administrative appeal from the contracting officer's February 1988 decision rather than instituting an independent superior court action. In November 1989, Calhoun filed an administrative appeal to the contracting officer's February 1988 decision. He stated the following points on appeal: the administrative officer's findings as to the absence of coercion were. not supported by the evidence; he was not afforded due process; the administrative officer's decision was made without affording him an opportunity to be heard or to cross-examine or to question witnesses; and the administrative officer's decision was erroneous because he was coerced by DOT & PF as to the manner in which he performed the contract. Calhoun failed to raise as a point on appeal, or to address, the loss of bonding claim. The superior court, Judge Pengilly, affirmed the February 1988 findings and conclusions of the contracting officer. Calhoun then appealed to this court. This first appeal was subsequently dismissed due to Calhoun's failure to prosecute. In October 1991, Calhoun filed the complaint which led to this appeal. The complaint raised the following issues: DOT & PF caused Calhoun to lose all of his bonding capabilities; DOT & PF breached the Coldfoot contract; DOT & PF took unjust advantage of Calhoun by means of coercion and intimidation; and DOT & PF committed fraud/defamation. DOT & PF moved to dismiss the 1991 complaint pursuant to Civil Rules 12(b)(1) and 12(b)(6), asserting that the claims alleged were barred by res judicata. The superior court, Judge Greene, treated DOT & PF's motion as a motion for summary judgment, which it granted. Calhoun now appeals the superi- or court's grant of summary judgment and consequent dismissal of his 1991 complaint. III. DISCUSSION A. Standard of Review In reviewing a grant of summary judgment, we must determine whether a genuine issue of material fact exists and, if not, whether the moving party is entitled to judgment as a matter of law. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). B. Should Calhoun's 1991 Claims Have Been Barred by Res Judica-ta? We have set forth our position on res judicata in DeNardo: Under the doctrine of res judicata, a judgment on the merits of the controversy bars subsequent actions between the same parties upon the same claim. The doctrine implements "the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court." It is settled that res judicata precludes relit-igation by the same parties, not only of claims raised in the first proceeding, but also of those relevant claims that could have been raised. The claims extinguished by the first judgment include "all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction . out of which the action arose," a mere change in the legal theory asserted as a ground for recovery will not avoid the preclusive effect of the judgment. DeNardo v. State, 740 P.2d 453, 455-56 (Alaska 1987), appeal dismissed, cert. denied, 484 U.S. 919, 108 S.Ct. 277, 98 L.Ed.2d 239 (1987) (citations omitted). DOT & PF contends that each of the four separate claims at issue in this appeal are barred. More particularly, DOT & PF argues that the requirements of res judica-ta are met in this instance. First, the superior court rendered a final judgment in 1989 on the merits of Calhoun's administrative appeal. Secondly, the parties to the 1988 superior court complaint, the 1989 administrative appeal to the superior court, the 1991 appeal to this court, the 1991 superior court complaint, and the instant appeal are all the same. Thirdly, the claims alleged in the 1991 superior court complaint arise out of the same transaction, namely the Coldfoot Hangar construction contract, as did the 1988 superior court complaint claims. Finally, the claims alleged in the 1991 complaint were raised or could have been raised in the 1989 administrative appeal. Our review of the record persuades us that DOT & PF's contentions are correct, that the elements of res judicata are satisfied, and that the superior court appropriately applied res judicata to bar each of the claims now in question. 1. Breach of Contract Claim Calhoun's 1988 superior court complaint contained a breach of contract claim, which he did not pursue in his 1989 administrative appeal to the superior court from the contracting officer's 1988 decision. Given the foregoing, the superior court ruled that the contract claim alleged in Calhoun's 1991 superior court complaint was barred by operation of the principles of res judicata because Calhoun did not preserve it in his 1989 administrative appeal. We find no error in the superior court's ruling that res judicata bars this 1991 breach of contract claim. 2. The Coercion Claim The first point in Calhoun's 1989 administrative appeal was that there was no support in the evidence for the administrative officer's findings as to the absence of coercion. The fourth point in that appeal argued that the administrative officer's decision that Calhoun had failed to comply with certain of the contract provisions was in error. Calhoun claimed that he was coerced by the DOT & PF as to the manner in which he both performed the contract and brought disputes before the agency under the contract. In deciding the 1989 administrative appeal Judge Pengilly rejected these arguments, stating: [Calhoun] also argues that [the contracting officer] erred in rejecting its claim of "coercion," but declines to specifically identify any coercive behavior on the part of DOT [ & PF's] representatives. The court's independent review of the record bears out [the contracting officer's] conclusion that the only factual basis for this complaint lies in DOT [ & PF]'s "enforcement of standard operating procedures and provisions of the contract documents." That conclusion "has a reasonable basis in law and fact," and is therefore affirmed. See Tarbox v. Alaska Transportation Commission, 687 P.2d 916, 919 (Alaska 1984). In granting summary judgment to DOT & PF as to Calhoun's 1991 coercion claim Judge Greene noted that Calhoun failed to distinguish the 1991 coercion claim from the coercion claim litigated in the 1989 administrative appeal. On the basis of the foregoing we conclude that the superior court correctly held that Calhoun's 1991 coercion claim was barred by res judicata. 3. The Fraud/Defamation Claims Calhoun's 1988 superior court complaint contained three separate fraud/misrepresentation claims. The superior court directly addressed these claims in its 1989 order requiring Calhoun to file an administrative appeal as to these claims. In correctly barring these claims on the basis of res judicata the superior court in part held: The evidence in the record does not indicate whether the fraud/misrepresentation issues were brought before the contracting officer. Yet, even if distinct fraud/misrepresentation claims were raised, they were not appealed to the superior court. Plaintiff's apparent failure to pursue this claim does not prevent the operation of res judicata. See Dennis v. Fiscal Court of Bullitt County, 784 S.W.2d 608, 611 (Ky.App.1990). Thus the superior court correctly held that res judicata barred Calhoun's fraud/misrepresentation claims. 4. The Loss of Bonding Claim On the issue of the bonding claim, the superior court held that Calhoun's 1991 claim was barred by res judicata. We affirm the superior court's holding, but rest our decision on a different basis. We hold that Calhoun's bonding claim is barred by application of administrative res judica-ta. We have previously held that "[although the principles of issue preclusion have been developed in a judicial setting, we agree with the modern and now generally accepted view that the doctrine of res judicata may be applied to adjudicative determinations made by administrative agencies." Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 (Alaska 1979) (citations omitted). Thus if a claim could have been raised before an agency in a prior administrative hearing, res judicata precludes subsequent litigation of the same claim. Col-ville Envtl. Servs. v. North Slope Bor ough, 831 P.2d 341, 345 (Alaska 1992). Because Calhoun had the opportunity to litigate the loss of bonding claim before the contracting officer in 1987, he is precluded from litigating the same claim under his 1991 superior court complaint. We noted in Colville, however, three instances when a final administrative judgment does not have preclusive effect: (1) The subject matter of the action was so plainly beyond the [adjudicative agency's] jurisdiction that its entertaining the action was a manifest abuse of authority; or (2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or (3) The judgment was rendered by [an adjudicative agency] lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the [adjudicative agency's] subject matter jurisdiction. Id. at 345-46 (quoting Restatement (Second) of Judgments § 12 (1982)). We analyze these exceptions in turn to determine if any are applicable to Calhoun's bonding claim. First, we inquire whether determination of Calhoun's loss of bonding claim is "plainly beyond" DOT & PF's jurisdiction to adjudicate. We conclude that it is not. DOT & PF's jurisdiction to adjudicate the claim arises from the language of the Cold-foot Hangar contract. Specification 00706, the claims and disputes specification, states that "all claims by the Contractor for additional compensation . or any dispute regarding a question of fact . shall be presented in writing by the Contractor." Calhoun's bonding claim was based on his allegations that DOT & PF's actions in administering the contract affected his bonding and ability to conduct business. As such, the allegations constituted a claim for "additional compensation" and "a dispute regarding a question of fact," and thus fell within the jurisdiction provided by the contract. Second, we inquire whether allowing an adjudication by the contracting officer to stand would infringe on the authority of another tribunal or agency. We are persuaded that it would not. DOT & PF is the only agency given authority to adjudicate claims under government construction contracts. Thus its authority could not conflict with that of another agency. Finally, we inquire whether DOT & PF lacked the capability to adequately determine its own jurisdiction. We note initially that DOT & PF has a professional staff, including a contracting officer familiar with the claims process and a claims engineer. Additionally, the Attorney General serves as legal counsel to DOT & PF. The Restatement (Second) of Judgments states that the proper question to ask is "whether the [agency] involved is one in which a challenge to subject matter jurisdiction could be given substantially the same quality of consideration that is available in a trial court of general jurisdiction." Restatement (Second) of Judgments § 12 cmt. e (1982), quoted in Colville, 831 P.2d at 350. Given the legal expertise available, we conclude that DOT & PF clearly was capable of determining its own jurisdiction. Since none of the exceptions to administrative res judicata apply to Calhoun's bonding claim, we hold that his 1991 claim was barred by administrative res judicata. IV. CONCLUSION We AFFIRM the superior court's grant of summary judgment and determination that Calhoun's claims were barred under the doctrine of res judicata. . The claims and disputes specification read, in part: A. If the Contractor becomes aware of any act or occurrence which may form the basis of a claim by the Contractor for additional compensation or an extension of time for performance, the Contractor shall immediately inform the Project Manager. If the matter cannot be resolved by agreement or change document within 7 days, the Contractor shall, within the next 14 days, submit written notice of the facts which may form the basis of the claim. In addition, all claims by the Contractor for additional compensation or an extension of time of performance or any dispute regarding a question of fact or interpretation of the contract shall be presented in writing by the Contractor to the Project Manager within the next 60 days unless the Project Manager agrees in writing to an extension of time for good cause shown.... B. In presenting the claim, the Contractor shall specifically include, to the extent then possible, the following: 1. The contract provisions which apply to the claim and under which it is made; 2. the bid items and quantities, if any, upon which the claim is based; 3. the specific relief requested, including additional compensation claimed and the basis upon which it was calculated and/or the additional time requested and the basis upon v/hich it was calculated. . The surety loss claim sounded in contract, reading: Defendant's contractural [sic] and/or quasi-contractural [sic] breaches has [sic] resulted in the loss of plaintiffs surety bond and resulted in a loss of plaintiffs ability to contract in the State of Alaska. . DOT & PF has summarized the above quoted passage from DeNardo to state a four element test. Res judicata precludes litigation of an issue in the following situations: (1) a judgment on the merits has been rendered; (2) the new claims arose out of the same transaction as the previous claims; (3) the second case is between the same parties; (4) the new claim was, or could have been, decided in the first case. . We further note that no exceptions to the bar of res judicata have been shown to be applicable. . In regard to this issue the superior court stated: The 1991 complaint describes the contract in question as the contract between Paramount and DOT/PF for the construction of "DOT Project # R-20066, Coldfoot Hangar/Generator Addition located at Coldfoot, AK." However, the 1988 complaint contained a breach of contract claim based on the theory that DOT/PF prevented Paramount from fully performing the contract by creating unreasonable delays and effecting numerous change orders. Even though the superior court directed Paramount to file this claim as an appeal of the contracting officer's decision on its claims for equitable adjustment, Paramount declined to appeal this claim. Rather, its appeal focussed on due process and coercion issues. Plaintiff has submitted no evidence to show that this breach of contract claim differs from the one previously litigated. The complaint and all the available evidence demonstrates that Paramount's "new" breach of contract is nothing but the same one litigated to final judgment. Consequently, the court finds that the breach of contract claim is barred by the doctrine of res judicata. . In its Memorandum Decision and Order, the superior court stated: However, plaintiff has neither delineated nor supplied evidence of the specific facts supporting this coercion claim. [Calhoun], as a matter of law, has failed to meet its burden of demonstrating that this is not the same claim. As a result, the court finds the coercion claim is likewise barred under the doctrine of res judicata. . As to this last claim, Judge Greene noted that under the terms of the 1989 dismissal of Calhoun's 1988 complaint, Calhoun was provided the opportunity to raise his loss of bonding claim in the subsequent administrative appeal. Applying the principles of res judicata, the superior court thus held that Calhoun's failure to raise the bonding issue in the administrative appeal barred his 1991 attempt to revive the same loss of bonding claim. Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986) (res judicata bars a second suit when the claims were trans-actionally connected and the matter could have been decided in the first suit). .We have held that "[t]his court is not bound by the reasoning articulated by the trial court and can affirm a grant of summary judgment on alternative grounds." Wright v. State, 824 P.2d 718, 720 (Alaska 1992).

10396225

Gerald GUDENAU d/b/a Gudenau & Company, Gerald Gudenau & Company, Inc., and Fireman's Fund Insurance Co., Appellants, v. Hwasong BANG and Jung Nam Bang, Appellees

Gudenau v. Bang

1989-10-27

No. S-2440

1357

1364

781 P.2d 1357

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Gerald GUDENAU d/b/a Gudenau & Company, Gerald Gudenau & Company, Inc., and Fireman’s Fund Insurance Co., Appellants, v. Hwasong BANG and Jung Nam Bang, Appellees.

Gerald GUDENAU d/b/a Gudenau & Company, Gerald Gudenau & Company, Inc., and Fireman’s Fund Insurance Co., Appellants, v. Hwasong BANG and Jung Nam Bang, Appellees. No. S-2440. Supreme Court of Alaska. Oct. 27, 1989. Peter W. Giannini, Law Office of Giannini & Associates, Anchorage, for appellants. Kurt M. LeDoux, LeDoux & LeDoux, Kodiak, for appellees. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

4323

26394

OPINION RABINOWITZ, Justice. 1. INTRODUCTION. This appeal arises out of a dispute as to whether the terms of a judgment entered on confession had been complied with. The superior court agreed with the Bangs that the terms of the judgment had not been met and awarded them a total judgment in the amount of $20,192.55. II. FACTS AND PROCEEDINGS. On July 10, 1978, Hwasong Bang and Jung Nam Bang contracted with Gerald Gudenau to purchase a house in Kodiak that Gudenau was building. After the Bangs moved in, numerous alleged defects, including standing water under the house, became apparent, causing the Bangs to file suit on July 9, 1979. On February 15, 1982, shortly before trial, the suit was settled by judgment of confession. Paragraphs A.l and A.2 of the judgment provided that the defendants would install a new drainage system in the Bangs' house, built to the design and specifications of Mr. Francis Richardson. Paragraph A.3 listed five minimum specifications for the new' drainage system and authorized Richardson "to establish such additional specifications . as he may, in his sole discretion, deem necessary." Paragraph A.4 gave Richardson authority to deviate from paragraph A.3's minimum specifications "when, in his opinion, adhering to such specifications would defeat the purposes of curing the currently defective drainage system around the house and eliminating water from standing under the house and eliminating the need for a water pump system." Paragraph A.7 provided for the appointment of a successor to Richardson if he was "unable or unwilling to perform any of the above acts of supervising and inspecting." Paragraph A.8 provided that all costs of the new drainage system were to be paid by the defendants, and paragraph A.9 provided a completion date of "no later than August 1, 1982." Gudenau then went to work on the Bangs' house. On November 5, 1982, Morris Lee, Kodiak's Building Official, inspected the house. Lee noted in a letter: "Drainage has been corrected by the installation of an automatic sump-pump_" Gudenau's attorney, C. Walter Ebell, then sent the Bangs' attorney, Kurt M. LeDoux, a satisfaction of judgment, but LeDoux refused to sign it because Gudenau had allegedly not complied with Richardson's specifications. In his November 30, 1982, letter to Ebell, LeDoux wrote: I spoke with Mr. Richardson on November 23, 1982. He stated that he was ready to do the needed improvements (i.e., tar the foundation, etc.), but that Mr. Gudenau wanted to see whether a "sump pump" and new gutters would work. I do not understand why Mr. Gu-denau thought a sump pump system would be acceptable since a sump pump system has never been acceptable to my clients. In any event, his new system is not working and water is still pouring through the nail holes in the wood part of the foundation. (Emphasis in original.) Rather than pursue their remedies provided in the judgment, the Bangs gave Gudenau fifteen days to commence remedial work or to propose an acceptable work schedule. On January 26, 1983, Ebell wrote back to LeDoux: According to Mr. Francis "Frenchy" Richardson the new drainage system was installed pursuant to his instructions and in accordance with his specifications. He designed such a system because in his opinion replacing the drain tile would not solve the problem of standing water under the house. As noted in Mr. Lee's correspondence, the system now in place corrects the drainage and dampness problem and meets the code requirements. The agreement was drafted to allow Mr. Richardson to resolve the problem of water under the house in the fashion he considered most appropriate. A third party was selected to perform this function in order to avoid any dispute as to the design of the system or the quality of the system as installed. The work has been performed in accordance with this neutral party's directions. It is unfortunate that the Bangs do not find this design acceptable. However, it should be noted that according to Mr. Lee the problem has been alleviated. Mr. Gudenau has spent a considerable amount of money in performing his obligations pursuant to the agreement and in accordance with the directions of Mssrs. Lee and Richardson. The Bangs have received the full benefit of the agreement and the matter should now be closed. Please sign and return the satisfaction of judgment to me. The satisfaction was not signed, and the dispute apparently lay dormant for the next forty-three months. On August 31, 1986, the Bangs filed a motion to amend the judgment pursuant to paragraphs F.2 and F.4 of the judgment. The relevant paragraphs of section F of the judgment, titled "Breach of Agreement," state: 1. Defendants shall be considered to have breached this agreement if they fail to perform the work as set forth in paragraphs A, B & C. The failure to perform pursuant to paragraph A may only be established in the sole discretion of Francis Richardson, or his successor, who shall state in an affidavit with particularity the facts constituting such breach.... 2. That if Defendants breach this judgment and Plaintiffs are forced to hire Mr. Francis Richardson or other contractors) to complete either the drainage system and/or the residing job, and/or the ventilation system, Plaintiffs shall file with the Court an Affidavit from the contractor who completes such work setting forth such contrantors [sic] charge for such work. Such sums stated in the Affidavit shall be considered an amendment to this judgment. There shall be 10.5 percent per annum post-judgment interest on said sum until paid; and 3. That Plaintiffs shall have the right to reserve any other remedy in law or equity against Defendants, including but not limited to a separate law suit if such is necessary, including but not limited to a suit seeking specific performance; and 4. That if it is necessary for either party to take steps to enforce this agreement and/or to file legal action, the prevailing party shall be awarded all of their reasonable attorney's fees. To support their request for $7,865 "for Francis Richardson's contractor[']s fee" and $550 in attorney's fees, plus interest, the Bangs appended to their motion two affidavits. The affidavit of LeDoux supported the attorney's fees request, which was made pursuant to paragraph F.4. Francis Richardson's affidavit was attached to meet the affidavit requirements set forth in paragraphs F.l and F.2. Paragraphs 3 and 4 of Richardson's affidavit stated: 3. Based upon my inspection and the Judgment on Confession, Defendants have breached the agreement set forth in paragraph A of the Judgment on Confession by not completing the drainage system to my specifications, and the following items still need to be performed in installing a new drainage system around the Bang house: [listing items in subparagraphs a-e.] 4. My charge for installing a new draining system around Plaintiffs' house is $7,865.00. Gudenau opposed the motion to amend the judgment on two grounds: (1) the motion was barred by laches; and (2) Gudenau had complied with all the provisions of the judgment. In support of his opposition Gu-denau filed an affidavit of Attorney Ebell and his own affidavit. In his own affidavit Gudenau stated in relevant part that: 2. I installed the drainage system around Plaintiffs' house pursuant to the specifications of Francis Richardson, and as set forth in the judgment on confession. 3. It is my recollection that Mr. Richardson was on the site during installation and that he inspected it. 4. After conferring with Mr. Richardson, crushed rock was not placed under the house, and a new double drain was not installed since it appeared that such specifications would defeat the purposes of curing the defective drainage system around the house. Mr. Richardson directed that a sump pump be installed under the house in lieu of the above specifications. 5. Sometime in late December, 1982, or early January, 1983, Mr. Richardson advised me that the work performed was acceptable and that it satisfied his specifications for the same. 6. On or about March 11, 1986, I received a copy of a letter from Kurt Le-Doux to my attorney, Walt Ebell, regarding the subject drainage system. This was the first time I was advised of any problems with the drainage system since its correction in 1982. Shortly after receipt of that letter, I contacted Mr. Richardson regarding this matter. Mr. Richardson told me that as far as he was concerned, all work had been done and completed and he did not know what the problem was. Attorney Ebell's affidavit stated: 3. On or about January 6, 1983, I spoke to Francis Richardson regarding this matter. He told me that the sump pump installed by GERALD GUDENAU was an acceptable method of correcting the drainage problem, and that it complied with his specifications for the same. The affidavit of Francis Richardson, dated August 29, 1986, is inconsistent with the representations he made to me and to MR. GUDENAU regarding this matter. Consequently, it will be necessary to take the deposition of Mr. Richardson in order to resolve this matter. Gudenau also filed a motion pursuant to Civil Rule 6(b) for one month's continuance to allow him to depose Richardson and file a supplemental response to the Bangs' motion. The superior court held a hearing on the Bangs' motion on October 16, 1986. What the court found in the hearing is not entirely clear. The court made no laches finding. Based on Richardson's affidavit and building inspector Lee's letter, the court appears to have concluded that Gudenau had indeed breached section A of the judgment. The court seems to reject implicitly Gudenau's argument that paragraphs A.3.f. and A.4 gave Richardson authority to alter the specifications in A.3.(a-e) to the extent of permitting Gudenau to install a sump pump. However, the superior court refused to grant the Bangs "a judgment in a fixed amount since it isn't justified." The court stated: "I think the first thing we should do is get the party to make an estimate that can be justified and have that person here so that the parties can examine them." Later in the hearing, the court stated: I need somebody who doesn't have an ax to grind that goes out and looks at it and says there is a problem or there isn't a problem and it's going to cost X-number of dollars to correct it; if I were to do the work, this is what would have to be done . to correct the problem. Gudenau suggested that the proper person to do this was Richardson and renewed his request to depose him, but the court rejected this suggestion because Richardson was no longer in Alaska and the judgment made provision for a successor. On November 20, 1986, LeDoux wrote Ebell, proposing three substitutes for Richardson and requesting Ebell to give him names of persons acceptable to Gudenau. Apparently Ebell never responded to Le-Doux's letter, so on December 19,1986, the Bangs filed a motion requesting the court to issue an order permitting the Bangs to appoint any of the three persons proposed in LeDoux's November letter as a "substitute contractor to complete the drainage system so as to cure its defects assuming that he finds that the specifications set forth in the Judgment on Confession would not have defeated the purpose of curing the defective drainage system, and to amend the Judgment on Confession to provide for payment of the substitute contractor's fees, attorney[']s fees, and interest." Gudenau opposed the motion, objecting to the contractors proposed by the Bangs on the basis that they were "not impartial," and moved to appoint the Kodiak building inspector "to initially determine whether the sump pump . was a suitable method of correcting the drainage problems, and, whether the additional specifications outlined in the Judgment of Confession would have effectively remedied the drainage problems where the sump pump did not." Gudenau "further move[d] that the building inspector should confer with Mr. Richardson regarding the specifications, if pos-sible_[and that] [a]fter the building inspector makes his initial determination, the parties can obtain estimates from other outside contractors, if warranted." The Bangs replied to Gudenau's opposition arguing that Gudenau had waived any impartiality objections by "their adamant refusal to confer with Plaintiffs and to designate any contractors for Plaintiffs' consideration." The Bangs opposed the appointment of the building inspector because he "is a municipal employee who should not be drawn into private disputes where political pressure could be placed upon him." Thereafter, the superior court issued an order appointing "Mr. Robert Shuttles-worth as substitute contractor to inspect the aforementioned property and prepare an estimate of the cost of correcting the drainage problem of water standing under the house — without resorting to use of a sump pump. Mr. Shuttlesworth shall use his best judgment and may recommend specifications other or greater than the minimum specifications set forth in the Judgment On Confession...." Shuttlesworth's estimate of $14,941 was filed in superior court. The estimate was in the form of a proposal which could be withdrawn if not accepted within sixty days of its date of issuance, February 19, 1987. On June 2, 1987, the Bangs filed a motion "to enter an amended judgment in their favor based upon the report of Robert Shuttlesworth." Gudenau opposed the motion on three grounds: 1) no breach of the judgment had been established; 2) the court's February 6 order "goes beyond the parties' agreement as set forth in the Judgment On Confession by eliminating the contractor's authority to deviate from the minimum specifications set forth in Paragraph A.3"; and 3) paragraph F.2 "allows amendment of the Judgment only after the work to complete the drainage system has actually been performed." Gudenau appended to his memorandum in opposition a June 25, 1987, affidavit of Anna M. Moran, which states: 1. I was formerly an associate attorney with the law firm JAMIN, EBELL, BOLGER & GENTRY, of attorneys for Defendants. 2. On January 15, 1987, I spoke to Francis Richardson regarding this ease. He advised me that Jerry Gudenau had done everything possible to cure the drainage around Plaintiffs' home and that the addition of crushed rock under the house had not been necessary and that a new double drain and regrading of the property would not solve Plaintiffs' drainage problems. He stated that Gu-denau had complied with the specifications as outlined in the Judgment of Confession. He further advised that the sump pump installed by Gudenau was an acceptable method of correcting Plaintiff's drainage problems and that it complied with the specifications for the same, as outlined in the Judgment of Confession. 3. Richardson advised me that he had been seriously ill for the past several months, including August of 1986. He stated he had not read the Affidavit presented to him by Plaintiffs, as he was too ill to do so. Gabrielle LeDoux told him what was in it, and he signed it. He was too ill to understand what was going on at that time. 4. Mr. Richardson is agreeable to having his deposition taken in order to clarify the matter. The Bangs then filed a reply memorandum and Gudenau filed a motion for a commission to take the deposition of Richardson in Coeur d'Alene, Idaho. On July 7,1987, the superior court issued an order containing the following findings of fact and conclusions of law: FINDINGS OF FACT 1. Paragraph F.l of the Judgment On Confession filed on February 16, 1982 provides in part that defendants shall be considered to have breached the agreement if they fail to perform the work as set forth in paragraph A concerning the installation of a new drainage system. 2. Paragraph F.4 of the Judgment on Confession provided that if any party takes legal action to enforce the agreement, the prevailing party shall be awarded all of their reasonable attorney's fees. 3. By Order dated February 6, 1987, the court appointed Robert Shuttles-worth as substitute contractor to prepare an estimate of the cost of correcting the drainage problem of water standing under the house. 4. Mr. Shuttlesworth has filed an Estimate dated February 18, 1987, indicating that the cost of correcting the drainage problems, including replacing wet insulation, is $14,941.00. 5. Paragraph F.l of the Judgment On Confession provides that breach of the agreement by failure to correct the drainage problem shall be established by affidavit of Francis Richardson or his successor. 6. By Affidavit dated August 29, 1986, Francis Richardson stated that defendants have breached the agreement by not completing the drainage system according to his specifications. CONCLUSIONS OF LAW 1. Defendants have breached the agreement pursuant to paragraph F.l of the Judgment on Confession by failing to perform the work set -forth in paragraph A and by attempting to correct the drainage problem by use of a sump pump. 2. Plaintiffs are entitled to judgment in the amount of $14,941.00 (FOURTEEN THOUSAND NINE HUNDRED AND FORTY ONE DOLLARS), the cost of correcting the drainage problem, and prejudgment interest at the rate of 10.5 per cent from February 19, 1987. 3. The court grants plaintiffs leave to motion the court for attorney's fees pursuant to paragraph F.4 of the Judgment On Confession and to file a bill of costs pursuant to Civil Rules 54(d) and 79. III. DISCUSSION. As indicated previously, Section F.l of the Judgment on Confession provided in part that: The failure to perform pursuant to paragraph A may only be established in the sole discretion of Francis Richardson, or his successor, who shall state in an affidavit with particularity the facts constituting such breach.... The matter came before the superior court on the Bangs' motion entitled "Motion to Amend Judgment on Confession." They claimed that the motion was being filed pursuant to paragraph F.2 of the judgment. Gudenau argues that this was, in fact, a motion for summary judgment on the issue of breach of the agreement based on Richardson's affidavit. Neither the Bangs nor Gudenau is correct. The Bangs are wrong because paragraph F.2 does not provide for amending the judgment by motion. Paragraph F.2 provides for the amendment of the judgment merely by filing the required affidavit "from the contractor who completes such work setting forth such contractor's] charge for such work." The agreement does not contemplate any action by the court in amending the judgment. Gudenau is wrong because the issue whether the agreement had been breached was not to be decided by the court pursuant to the agreement. Rather, pursuant to paragraph F.l, breach of the agreement could be established only by Richardson or his successor. Judgment on Confession [hereinafter JOC] U F.l. Although the court was empowered by the agreement to appoint a master to select a successor for Richardson if the parties could not agree on a successor and if Morris Lee were not available to appoint one, JOC ¶ G, A.7, the court was not empowered to appoint itself successor to Richardson and declare that the agreement had been breached. However, when Gudenau opposed the motion to amend, he was contesting the veracity of Richardson's affidavit, i.e., that Gudenau had breached the terms of the original judgment relating to the installation of a drainage system. By submitting affidavits which tended to impeach Richardson's affidavit Gudenau raised genuine issues of material fact going to the veracity of Richardson's affidavit. Given the state of the record we hold that the matter should be remanded to the superior court for a hearing on the question whether Gu-denau breached the provisions of the judgment on confession pertaining to the installation of a drainage system. A. Continuance — Cross-Examination. The foregoing disposition has made it unnecessary to address Gudenau's contention that the superior court erred in refusing to grant a continuance for the purpose of deposing Richardson. Further, our remand has rendered moot Gudenau's point that the superior court erred in its refusal to allow him to cross-examine Richardson. B. Laches. In his opposition and at the October 1986 hearing, Gudenau also invoked the defense of laches against the Bangs' motion to amend the judgment. Laches is an equitable defense inapplicable to actions at law. See Kodiak Elec. Ass'n v. DeLaval Turbine, Inc., 694 P.2d 150, 157 (Alaska 1984). We conclude that the instant action is one in law and that therefore Gudenau's defense of laches is inappropriate. C.What Should Happen if a Breach by Gudenau is Established on Remand? Assuming that Gudenau's breach is established upon remand, the agreement contemplates that the Bangs will hire a contractor to complete the drainage system to Richardson's specifications. See JOC 11 F.2. This contractor is, in the first instance, to be Richardson, and Gudenau is to pay the "reasonable costs that . [he] charges for such work," which, it can be reasonably assumed, would comply with the specifications he had given Gudenau. JOC 11 A.10. If Richardson is "unable or unwilling" to complete the job, then the Bangs are to seek bids to complete the drainage system work on two "separate licensed and bonded contractors of their sole choice." JOC 11 A.ll. The details of the work that would be bid out are to be determined by Richardson. See JOC 11 A.2. The lower of the two bidders would complete the job, and Gude-nau is to pay "whatever cost is charged." JOC 11 A.12. In order to pay the contractor who completes the work, the Bangs are to "file with the Court an Affidavit from the contractor who completes such work setting forth such contrantors [sic] charge for such work." JOC II F.2. The amount stated in the affidavit is to "be considered an amendment to [the] judgment." JOC ¶ F.2. Thus, it is contemplated that the filing of the affidavit would give the Bangs a money judgment. This judgment would accrue interest at 10.5% per year until paid. JOC ¶ F.2. The Bangs can execute on this judgment by filing an affidavit stating (1) that Gudenau had defaulted on the judgment, and (2) the sum then in default. JOC ¶ H.2. The superior court's judgment is REVERSED and the case REMANDED for further proceedings not inconsistent with the foregoing. . Defendant Gudenau and Company, Inc., is the incorporated form of Gudenau's business. Defendant Fireman's Fund Insurance Company was Gudenau's bonding company. . Confession of judgments after an action has been commenced are authorized by Civil Rule 57(b). Although filed in court, such judgments are not approved or supervised by the court. . Richardson had moved to Idaho. . Paragraph A.7 of the judgment states: 7. That if Mr. Francis Richardson is unable or unwilling to perform any of the above acts of supervising and inspecting such drainage system, a successor shall be chosen by the mutual agreement of the parties. If a successor cannot be agreed upon, Mr. Morris Lee of Kodiak, Alaska, in his sole discretion, shall appoint a successor. Mr. Morris Lee may appoint himself successor.... Paragraph G of the judgment states: In the event any third party mentioned herein is unable or unwilling to perform the acts stated herein, and an alternate third party stated herein is unable or unwilling to perform, or if an alternate party is not appointed, and the parties are unable to agree as to a new supervisor, the parties to this action shall then move the Court to seek the appointment of a Master to select such successor. . Both parties seem to have forgotten that they agreed at the October 16 hearing that if they could not agree, the present building inspector would be substituted for Mr. Lee, and that in accordance with paragraph A.7 that person would, in his sole discretion, select Mr. Richardson's successor, and that he could, but need not, select himself. . The Bangs were entitled to have the confession judgment amended to include a money judgment provided that they filed the affidavit required by paragraph F.2. This amendment had been stipulated to by both parties when they signed the confession of judgment in 1982, and did not require any action by the court unless Gudenau did not pay the amount due and the Bangs then wanted to execute on the judgment. Only in this eventuality — in order to obtain the required entry of judgment — could the court's attention be required. . In addition to his own affidavit Gudenau submitted the affidavit of Anna Moran. Moran's affidavit contained averments which tended to impeach material assertions of fact purportedly made by Richardson in his affidavit. The Bangs' argument that these impeaching affidavits should not be considered because they are hearsay is without merit. These affidavits are admissible for the purpose of impeaching Richardson's affidavit. In regard to the affidavit of Gudenau's counsel, Ebell, see this court's discussion of Disciplinary Rule 5-102 in Munn v. Bristol Bay Housing Authority, 777 P.2d 188, 196-197 (Alaska, 1989). . We construe Gudenau's opposition to the Bangs' motion as invoking the equitable powers of the superior court to prevent entry of judgment based on a possibly false affidavit. . An action to enforce a judgment may be legal or equitable in nature, depending on the relief sought. See D. Dobbs, Remedies § 1.3 at 9-12 (1973); Restatement (Second) of Judgments § 18, comment C at 154-155 (1980) (enforcement action equitable when relief sought is equitable in nature). The relief sought by the Bangs is of a type that is within the powers traditionally possessed by courts of law. Here the Bangs requested the superior court to award them damages based upon events which allegedly constituted a breach of contract under the provision of the confession judgment. Since the Bangs' enforcement action for contract damages is legal in nature, the equitable doctrine of lach-es is not available to Gudenau.

10387137

ALASKA CONTINENTAL BANK, Appellant, v. ANCHORAGE COMMERCIAL LAND ASSOCIATES, Appellee

Alaska Continental Bank v. Anchorage Commercial Land Associates

1989-10-20

No. S-2644

562

567

781 P.2d 562

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA CONTINENTAL BANK, Appellant, v. ANCHORAGE COMMERCIAL LAND ASSOCIATES, Appellee.

ALASKA CONTINENTAL BANK, Appellant, v. ANCHORAGE COMMERCIAL LAND ASSOCIATES, Appellee. No. S-2644. Supreme Court of Alaska. Oct. 20, 1989. Michael Zahare, Bradbury, Bliss & Rior-dan, Anchorage, for appellant. Timothy R. Byrnes, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

3459

21833

RABINOWITZ, Justice. This appeal is governed by the law of Hawaii. The main dispute concerns the liability of a limited partnership for a loan negotiated by its former general partner and Alaska Continental Bank. The issues presented are whether the limited partners ratified the bank loan, and whether the partnership is estopped to deny the validity of the loan. The counterclaim raises the question whether the limited partnership should have paid the bank pursuant to an assignment executed by a limited partner in an unrelated transaction. The superior court entered judgment for the partnership, ordering that the partnership could not be held liable for the bank loan. The court also entered judgment in favor of the partnership on the bank's counterclaim. We reverse and remand. 1. FACTUAL AND PROCEDURAL BACKGROUND. Appellee Alaska Commercial Land Associates is a limited partnership which at the time of the transaction in question owned two adjoining tracts of land in Anchorage known as the Costco property and tract A1A. The general partner was The Clients Development Corporation (TCDC), whose president was Van Carrigan. Carrigan was a board member of appellant Alaska Continental Bank until March 1985, at which time he became a member of the bank's holding company, which owns 100 percent of the bank's stock. In July 1985 Carrigan applied for a $200,000 loan on behalf of TCDC for "working capital," secured by TCDC's interest in the limited partnership. After the bank's counsel reviewed the limited partnership agreement, the bank turned down the loan. The bank's decision was premised on its understanding that TCDC's interest in the partnership could not be pledged without the consent of the limited partners, which had not been obtained. Within two weeks of being informed that his loan application had been denied, Carri-gan applied for another loan. This time Carrigan proposed that the partnership borrow the money, secured by a deed of trust on tract A1A. The bank approved a loan of $400,000. This loan was made based on Carrigan's agreement that $167,-000 would be used to pay off existing liabilities on a second deed of trust on tract A1A. The superior court found that Carri-gan's use of the proceeds violated the partnership agreement. Within three months after the loan was approved, the limited partners became convinced that TCDC, through Carrigan, was acting improperly as their general partner. In November of 1985 the limited partners voted to oust TCDC as general partner. Mitch Pike, a real estate agent, was installed as interim general partner. The partnership subsequently sued TCDC, Carrigan and others, disputing the validity of the $400,000 loan and other transactions. The partnership made interest payments on the loan in January, February, March, and April of 1986. The superior court found that Pike made all of these payments. However, the partnership contended in a motion for reconsideration that Pike made only the March and April payments, and that the bank took the January and February payments directly out of the partnership's bank account. The superior court found it unnecessary to address this claim of error on reconsideration, and the evidence on this issue is inconclusive. Also in March, Pike approached the bank proposing to increase the existing loan to $600,000, thereby paying off the $400,000 debt and giving the partnership net proceeds of $200,000. The bank rejected Pike's proposal. Thereafter, the partnership defaulted on the note. The bank then began to collect rent money directly from Costco, the partnership's tenant. In August 1986 Pike paid the bank a $2,000 "fee" so the bank would refrain from collecting Costco's rents. In October 1986 William Swayne was appointed general partner of the partnership. Within days of his appointment, Swayne apprised the bank that the partnership might challenge the validity of the $400,000 loan. The partnership then sued the bank to obtain a declaration that it was not obligated to repay the loan. Additionally, the partnership sought to enjoin foreclosure proceedings which the bank had commenced in relation to tract A1A. Following trial, the superior court ruled that the partnership had ratified the loan, and thus had a duty to repay it in full. The partnership then moved for reconsideration on the ground that the bank failed to present evidence that all the limited partners had ratified the loan as required by Hawaii law. The superior court granted the motion for reconsideration, and held that the partnership had not ratified the loan. The superior court denied the bank's subsequent request to present additional evidence on the ratification issue, and entered judgment for the partnership. This appeal followed. II. RATIFICATION. The bank contends that the superior court erred in concluding that the unauthorized act of a general partner may be ratified only if each limited partner has had a formal opportunity to object to the ratification. The partnership contends that the superior court correctly resolved the legal issues. Ratification is an affirmative defense. See Morrow v. New Moon Homes, Inc., 548 P.2d 279, 294 (Alaska 1976) ("An affirmative defense is a new matter not set forth in the complaint which serves as a complete defense to it.") The burden of proving an affirmative defense is on the party asserting it. Id. Therefore, the bank had the burden of proving that the limited partners ratified the $400,000 loan. In reviewing questions of law we apply our independent judgment and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). A. Express Ratification. Hawaii has enacted the Uniform Limited Partnership Act ("ULPA"), Haw.Rev.Stat. ("HRS") § 425-21 to 425-52. The provisions of the Uniform Partnership Act ("UPA"), HRS § 425-101 to 425-143, also apply to limited partnerships to the extent they do not conflict with the ULPA. Id. § 425-106(2). A general partner is an agent of the limited partnership for the purpose of conducting partnership business; therefore, acts of the general partner within his actual or apparent authority bind the partnership. Id. § 425-109. In the instant case the superior court found that Carrigan had neither actual nor apparent authority to obligate the partnership on the $400,000 loan. Even if a general partner lacks authority to enter a particular transaction, the partnership is bound by the general partner's action upon "written consent or ratification of the specific act by all the limited partners." HRS § 425-29. In Phillips v. KULA 200, Wick Realty, Inc., 2 Haw.App. 206, 629 P.2d 119, 122-23 (1981), the Hawaii Intermediate Court of Appeals examined HRS § 425-29 and concluded that a purported ratification by fewer than all the limited partners did not preclude suit by the partnership against a general partner that had breached its duty to the partnership: Can 75.69 percent of the limited partnership interests cause the limited partnership to ratify, forgive, or waive a claim for a breach of fiduciary duty owed it by one of its general partners? We answer that they cannot. On this appeal, the crucial fact is not that 75.69 percent of the limited partnership interests have expressly consented and ratified the alleged acts of unauthorized self-dealing. Rather, it is that 24.-31 percent have not. Until 100 percent are accounted for, the limited partnership is entitled to directly or derivatively maintain an action for damages. In the case at bar the bank failed to present evidence from which the superior court could have concluded that every lim ited partner agreed in writing to be bound by Carrigan's unauthorized act. Therefore, the superior court correctly held that the limited partners had not expressly rati- - fied the loan in question. B. Ratification by Implication. The bank argues that the superior court erred in concluding that the partnership is not bound under the doctrine of ratification by implication. The partnership contends that the statutory requirement of express ratification eliminates the possibility of implied ratification. Ratification is a common law doctrine by which a principal may affirm an act purportedly done on his or her behalf by an agent. Bruton v. Automatic Welding & Supply Corp., 513 P.2d 1122, 1126-27 (Alaska 1973). Under Hawaii common law, "[w]here the partnership accepts the benefits of the unauthorized acts of its partner, with actual or constructive knowledge of all the material facts, it is deemed to have ratified the act." In re WPMK Corp., 59 B.R. 991, 997 (D.Hawaii 1986) (citation omitted.) Consistent with Hawaii law is the related principle, recognized by this court in Bruton, that where a principal learns of the transaction but remains silent in circumstances where the principal would normally be expected to repudiate or disaf-firm, the principal may be bound by the doctrine of ratification by implication. Bruton, 513 P.2d at 1127-28. Under Hawaii law a general partnership may ratify an unauthorized transaction by implication. In re WPMK Corp., 59 B.R. at 997. On the other hand we are aware of no decision by the courts of Hawaii in which the i >c-trine of implied ratification has been applied to a limited partnership. Our research has led us to the conclusion that a limited partnership may impliedly ratify an unauthorized transaction of a general partner under HRS § 425-29. Although the Hawaii statute requires written consent, we conclude that it does not call for written ratification as well. Otherwise, limited partners would be allowed to reap the benefits of tacitly agreed upon "unauthorized" transactions without being bound in the event a particular transaction turned sour. Thus, it must be determined whether the bank's loan was impliedly ratified "by all the limited partners." HRS § 425-29. In the instant case, the bank argues that each limited partner impliedly ratified the TCDC loan by not repudiating it upon being made aware of its existence. Our study of the record persuades us that this remaining issue should be remanded for resolution. We note that in its findings of fact the superior court did not address the question whether or not each limited partner impliedly ratified the transaction. Furthermore, when the bank requested the opportunity to present additional evidence on the issue, the superior court denied the motion because it believed that, as a matter of law, the limited partners could not impliedly ratify the loan. We therefore reverse the superior court's holding that the limited partnership may not be bound by the doctrine of implied ratification. Further we note our disagreement with the superior court's statement that, if implied ratification were permitted under Hawaii law, the bank would have to prove that the limited partners were given a "formal" opportunity to repudiate the transaction. On the contrary, implied ratification by the limited partners may be demonstrated by less formal evidence in accordance with the common law principles set forth above. III. COUNTERCLAIM: THE- PISTER ASSIGNMENT. 1. Facts. In an unrelated transaction, limited partners James Pister and Virginia Pister borrowed $338,000 from Alaska Continental Bank. The partnership consented to assignment to the bank of the Pisters' limited partnership interest as collateral. There is testimony on behalf of the bank that, both before and at the time of the loan closing, Pike agreed that the bank would be included as a payee on any checks issued by the partnership as distributions for the Pister partnership interest. Notwithstanding this alleged oral agreement between the bank and the Pisters, and the assignment, the partnership distributed $39,571 to the Pisters solely. In the superior court the bank counterclaimed against the partnership seeking to recover the $39,571 distributed to the Pis-ters. The court initially entered judgment for the bank, then reconsidered and concluded that the partnership was not bound by the assignment. 2. Analysis. Article 11 of the limited partnership agreement severely circumscribes the alien-ability of partnership interests. Section 11.2(b) prohibits a limited partner from transferring his interest absent consent by the general partner. Additionally, in section 11.1(b) each limited partner agreed that he would not transfer any part of his interest to any person who does not "warrant" and agree not to transfer the interest. Here the security agreement executed by the Pisters granted the bank complete "discretion[ ] to transfer . any or all of the Collateral," in violation of section 11.-1(b). Additionally, the security agreement required the partnership to pay the bank only upon default or demand by the bank. Our study of the record persuades us that this issue also must be remanded to the superior court for resolution. More specifically, on remand the superior court should make explicit findings of fact as to whether the partnership orally agreed that the bank would be included as a payee on any disbursement to the Pisters. In the event that the superior court enters such a finding, and further finds that the partnership breached the oral agreement, then the superior court should enter judgment in favor of the bank on its counterclaim. The judgment of the superior court is REVERSED and the matter REMANDED to the superior court for further proceedings not inconsistent with this opinion. MATTHEWS, C.J., dissents. . The limited partnership agreement states that "the application or interpretation [of the agreement] shall be governed exclusively by its terms and by the laws of the State of Hawaii." . The superior court entered detailed factual findings which are not challenged on appeal. Our summary of the facts relies on the superior court's findings. Although Alaska Continental Bank challenged some of the findings in the points on appeal, its subsequent failure to brief these issues waives the challenge. Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977). . HRS § 425-29 is identical to AS 32.10.080. The Hawaii statute provides in part: A general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners, except that without the written consent or ratification of the specific act by all the limited partners, a general partner or all of the general partners have no authority to: (4) Possess partnership property, or assign their rights in specific partnership property for other than a partnership purpose.... . We do note that the requirement of ratification by each limited partner may in certain cases result in an unwarranted shield of liability for limited partners. In this respect it should be pointed out that this unique aspect of limited partnership law has apparently been abrogated in the most recent version of the Uniform Limit ed Partnership Act. Compare ULPA § 403 (1976, rev.1985), 6 U.L.A. 321 (1989 Supp.) with ULPA § 9(1) (1916), 6 U.L.A. 586 (1969). . See Shindler v. Marr & Associates, 695 S.W.2d 699, 705 (Tex.App.1985) (limited partnership, governed by ULPA, bound by unauthorized transaction of general partner if limited partners impliedly ratify the transaction); Chelsea Nat'l Bank v. Lincoln Towers Associates, 61 N.Y.2d 817, 473 N.Y.S.2d 953, 954, 462 N.E.2d 130, 131 (1984) (evidence of implied ratification by limited partnership too equivocal to be submitted to jury); Chemical Bank of Rochester v. Haskell, 68 A.D.2d 347, 417 N.Y.S.2d 541, 545 (1979), rev'd on other grounds, 51 N.Y.2d 85, 432 N.Y.S.2d 478, 411 N.E.2d 1339 (1980) (New York limited partnerships governed by ULPA). . The bank also argues that the superior court erred in failing to rule that the doctrine of equitable estoppel precludes the partnership from contesting its liabilities on the loan. We believe that the bank is not entitled to assert this theory. A party seeking to invoke equitable principles must come before the court with clean hands. In re Project 5 Drilling Program — 1980, 30 B.R. 670, 674 (Bankr.W.D.Ok.1983). In the case at bar we conclude that the bank cannot invoke equitable estoppel since it has unclean hands. The superior court found in concluding that Carrigan did not have apparent authority to bind the partnership on this loan that: At worst, [the bank] knowingly chose to overlook the irregularities in this case or to decline to investigate further. At best, [the bank] was negligent in failing to seek information in the form of legal opinions and/or consultations with limited partners. [The bank's] inadequate loan review is particularly egregious in this case, because it was dealing with an "insider," Mr. Carrigan, [who was on the bank's holding company board.] (Footnote omitted.) There is substantial support for this finding in the record. In relevant part, there is testimony that the bank approved Carrigan's second loan application with almost no investigation into whether the loan, and its intended use, were in violation of the partnership agreement. The bank's failure to inquire into the purposes of a loan which obligated a partnership, and which was used to benefit entities in which the borrowing agent had a substantial interest, precludes the bank from asserting a theory of equitable estoppel. . At the time this distribution was made the $338,000 loan was not in default. . We have considered the partnership's other arguments in connection with this counterclaim issue and have concluded that they are lacking in merit.

10393616

John SMALLWOOD, Appellant, v. STATE of Alaska, Appellee

Smallwood v. State

1989-11-03

No. A-2695

1000

1005

781 P.2d 1000

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

John SMALLWOOD, Appellant, v. STATE of Alaska, Appellee.

John SMALLWOOD, Appellant, v. STATE of Alaska, Appellee. No. A-2695. Court of Appeals of Alaska. Nov. 3, 1989. Charlene A. Lichtmann, Anchorage, for appellant. Ron Sutcliffe, Asst. Dist. Atty., James L. Hanley, Dist. Atty., Kenai, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2824

17005

OPINION COATS, Judge. John Smallwood was convicted of theft in the third degree in violation of AS 11.46.-140. Smallwood was prosecuted on the theory that he was legally accountable for the conduct of his twenty-yeár-old, mentally retarded daughter, Patricia Smallwood. Alaska Statute 11.16.110 provides in part: Legal accountability based upon the conduct of another: Complicity. A person is legally accountable for the conduct of another constituting an offense if (3) acting with the culpable mental state that is sufficient for the commission of the offense, the person causes an innocent person or a person who lacks criminal responsibility to engage in the proscribed conduct. Smallwood appeals his conviction, arguing that the court erred in taking judicial notice of the fact that Patricia Smallwood lacked criminal responsibility for the crime charged. We reverse. At trial, Pay'N Save store detectives testified that they saw John Smallwood, his wife Janice, and Patricia pushing two shopping carts through the Pay'N Save store. The detectives observed the Smallwoods placing items from the store shelves into Pay'N Save bags in one of the carts. An infant in a car seat rode in the cart with the bags. Patricia Smallwood then pushed the cart containing the baby and the bagged merchandise out of the store into the parking lot. The elder Smallwoods proceeded to the checkout line and paid with a check for the items in the other cart. Patricia was stopped in the parking lot by a store detective and brought back into the store. The elder Smallwoods were also detained, and the family was taken into a back room of the store. John Smallwood told the store detectives that he had given his wallet to his daughter when they separated, so that she could pay for the items in her cart. At some point when they were all in the back room, both detectives saw John Smallwood hand his wallet to Patricia. It is unclear whether this was before or after Smallwood stated that he had given Patricia his wallet before she left the store. Originally, John, Janice, and Patricia Smallwood were all charged with theft in the third degree. However, both Patricia and Janice were found incompetent to stand trial based on psychological evaluations. At trial, John's defense was that he had sent Patricia to the front of the store to pay for the items in her cart, so that she could then take the baby out to the car to change his diaper. Both John and Patricia testified that the bags into which she placed items had been in the cart when she got it. Patricia testified that she put the items into the bags so that they would not smother the baby who was also in the cart. They both testified that when the baby started crying, John gave Patricia his wallet and told her to pay for the items and then take the baby outside. Patricia testified that she had intended to pay for the items, but that it "slipped [her] mind" because the baby was crying and she wanted to get him out to the car. John testified that there had been other occasions when Patricia took items from stores without paying for them due to "mind lapse." Both Patricia and John testified that while they were in the back room of the store with the detectives, she handed him his wallet so that he could see that the money was still in it, and he then handed it back to her. Just before Patricia was called as a defense witness, the trial judge gave the following instruction to the jury: I can take judicial notice of a number of things and among these are matters of common knowledge . in this case I'm taking judicial notice of a legal action that was taken in another case. And when I declare that the court will take judicial notice of a fact or event, you must accept my declaration as evidence and regard it as conclusively proved . In this case I have taken judicial notice of the fact that Janice Smallwood and Patricia Smallwood have been found to be mentally incompetent under the law in relation to this case, and that they are not mentally culpable for purposes of holding them responsible for the crime of theft due to mental impairment. The court repeated this instruction in its final charge to the jury. Smallwood argues that in giving this instruction the court violated the Alaska Rules of Evidence and usurped the jury's role of finding that all of the elements of the charge had been established beyond a reasonable doubt. Neither of these objections were raised at trial. Alaska Evidence Rule 201 governs judicial notice of facts. Subsection (b) of Rule 201 states: General Rule. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within this state or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Evidence Rule 203 sets forth the procedure for taking judicial notice. Subsection (c) of Rule 203 states in part: Instructing the Jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but it is not required to, accept as conclusive any fact judicially noticed.... Smallwood argues that the judicial notice instruction was erroneous both because the "facts" noticed do not fall within Rule 201(b), and because the court instructed the jury that it must accept the judicially-noticed facts as conclusive, in violation of Rule 203(c). The state concedes error on the second of these points. Smallwood's first assignment of error is also correct. The court's taking judicial notice of the fact that Patricia had been found incompetent to stand trial appears to be permissible since this information is capable of accurate determination by resorting to court records, a source whose accuracy cannot reasonably be questioned. However, the trial judge here went beyond noticing that a court had found Patricia incompetent to stand trial when he instructed the jury that Patricia was "not mentally culpable for purposes of holding [her] responsible for the crime of theft, due to mental impairment." Court records may be an unquestionably accurate source of information as to the content of court orders, but often the propriety of the substance of a court order, and the accuracy of the findings upon which it is premised, can reasonably be questioned. In this case, a court's finding that Patricia was incompetent to stand trial did not conclusively establish that she was in fact "not mentally culpable" for the theft. There is a difference between a finding that a person is incompetent to stand trial and a finding that the person is "not mentally culpable" for theft. In addition, the standard of proof for determining competency to stand trial is proof by a preponderance of the evidence. McCarlo v. State, 677 P.2d 1268, 1272 (Alaska App.1984). While it may in some cases be permissible for a court to take judicial notice of the substance of another court's findings, it is not permissible for a court to find that an element of a criminal charge, which must be established by proof beyond a reasonable doubt, has been adequately established by a finding based upon a mere preponderance of the evidence. The trial court erred in taking judicial notice of the "fact" that Patricia Smallwood was not mentally culpable for the crime of theft, and then compounded this error by advising the jury that they must accept this fact as conclusively proven. However, since Smallwood never objected at trial on either of these grounds, we must determine whether the error rises to the level of plain error. Van Hatten v. State, 666 P.2d 1047 (Alaska App.1983). An error is reviewable as plain error only if it affects a substantial right and is obviously prejudicial. Id. at 1055. In order to convict Smallwood, the jury had to find that he had caused an innocent person, or a person who lacked criminal responsibility, to commit a theft. AS 11.-46.140. It is clear that the court's error in taking conclusive judicial notice of an element of the charge affected a substantial right of Smallwood's: the right to be convicted only upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. See Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-1073, 25 L.Ed.2d 368 (1970). The state concedes that the court committed an error of constitutional dimension. This concession is supported by the case law. The state argues that the court's error, while substantial, is not grounds for reversal under the plain error rule because it was not obviously prejudicial. The measure of obvious prejudice under the plain error rule is "whether it can fairly be said that the alleged error did not appreciably affect the jury's verdict." Van Hatten, 666 P.2d at 1057. The state points out that Smallwood's defense did not depend upon a finding that Patricia was mentally competent, and contends that Smallwood's trial attorney, as a matter of strategy, virtually stipulated to Patricia's incompetence. The state's argument is well-founded. Small-wood's defense, that he intended for Patricia to pay for the merchandise in her cart, is not materially affected by a finding that Patricia lacks criminal responsibility for her conduct. Furthermore, Smallwood's defense depended in part on Patricia's disability. Smallwood testified that Patricia had a learning disability and that on other occasions she had failed to pay for store merchandise due to "mind lapse or whatever it is." In his final argument, Small-wood's counsel referred twice to Patricia's disability. He argued that it was unlikely that Smallwood would "try to get a mentally deficient daughter to . pull off a scheme" when he knew that store detectives were watching him. Defense counsel also referred to incidences when Patricia failed to pay for store items in the past, which he attributed to her "mental deficiency." However, even given the defense's apparent indifference to the issue of Patricia's mental culpability, we do not believe it can be fairly said that the error did not appreciably affect the jury's verdict. The court's instruction essentially directed a verdict for the prosecution on one of the essential elements of the charge. "[T]he error in such a case is that the wrong entity judged the defendant guilty." Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). In Rose v. Clark the Supreme Court allowed the application of a harmless error standard when the trial court erroneously instructed the jury that there was a rebut-table presumption that any homicide was malicious. Malice was an element of the offense charged, second-degree murder. However, the Court recognized that there were some errors that necessarily rendered a trial fundamentally unfair (e.g., complete denial of the right to counsel, adjudication by a biased judge), and that harmless error analysis was thus inapplicable to such errors. Id. at 577-78, 106 S.Ct. at 3105-06. The Court included directed verdicts for the prosecution among those errors so fundamental that reversal was mandated. Id. at 578, 106 S.Ct. at 3106. The rebuttable presumption instruction given in Rose was not equivalent to a directed verdict for the state, however: Because a presumption does not remove the issue of intent from the jury's consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue. Id. at 580 n. 8, 106 S.Ct. at 3107 n. 8 (quoting Connecticut v. Johnson, 460 U.S. 73, 95 n. 3, 103 S.Ct. 969, 982 n. 3, 74 L.Ed.2d 823 (1983)). In the present case, the erroneous instruction did prevent the jury from considering the issue of Patricia Smallwood's criminal responsibility for her actions. We are also guided by the decisions of two federal circuit courts, interpreting Rose v. Clark to mean that harmless error principles should not be applied to a jury instruction which conclusively establishes an essential element of the crime charged. See United States v. Mentz, 840 F.2d 315 (6th Cir.1988); United States v. White Horse, 807 F.2d 1426 (8th Cir.1986). The defendants in White Horse were charged with knowingly converting the funds of an Indian tribal organization, in violation of 18 U.S.C. § 1163 (1982). The Eighth Circuit Court of Appeals ruled that the trial court committed reversible error in instructing the jury, as a matter of law, that the Cheyenne River Sioux Tribe Telephone Authority was an Indian tribal organization. Citing Rose v. Clark, the court held: In the present case, the judge's instructions to the jury deprived the jury of the ability to determine whether the facts essential to appellants' convictions were established by the evidence beyond a reasonable doubt. This was harmful error. Appellants were deprived of their full constitutional right to a jury trial, and their convictions must accordingly be reversed. White Horse, 807 F.2d at 1432 (citation omitted). In Mentz, one of the essential elements of the charge of bank robbery was that the deposits of the financial institution robbed were insured by the Federal Deposit Insurance Corporation (FDIC). 18 U.S.C. § 2113(f). The trial court instructed the jury that the banks Mentz was accused of robbing were insured by the FDIC. The Court of Appeals for the Sixth Circuit reversed Mentz's conviction, holding: In the instant case, the error cannot be deemed harmless. By placing a judicial imprimatur on the government's proof with respect to an element of the offense, the faulty instruction directed a partial verdict for the prosecution, ensuring that the jury would not find all elements beyond a reasonable doubt. This is a far cry from the rebuttable presumption at issue in Rose v. Clark, which did not remove the element of malice from the jury's consideration. Instead, this is a case where the "wrong entity judged the defendant guilty," thereby rendering the trial fundamentally unfair . Mentz, 840 F.2d at 324 (citation and footnote omitted). We are persuaded that the reasoning of these cases should be applied to the present case. By instructing the jury that it had been conclusively proven that Patricia Smallwood was not mentally culpable for the theft, the trial court relieved the state of its burden to establish, and the jury of its duty to find, that every essential element of the charge had been proven be yond a reasonable doubt. This rendered Smallwood's trial fundamentally unfair, and eliminates the need for further inquiry into the prejudice stemming from the court's error. The conviction is REVERSED. . See Lemon v. State, 522 P.2d 160 (Alaska 1974). The defendant in Lemon was charged with escape. The supreme court upheld the taking of judicial notice of the fact that the defendant had been confined to custody by court order in another case. . See, e.g., United States v. Mentz, 840 F.2d 315 (6th Cir.1988) (trial court committed constitutional error in case charging robbery of FDIC-insured banks when it took judicial notice that the banks robbed were FDIC-insured); United States v. Argentine, 814 F.2d 783 (1st Cir.1987) (court committed constitutional error when, in response to a question from the jury, the court referred to disputed facts as if they had been conclusively established); United States v. White Horse, 807 F.2d 1426 (8th Cir.1986) (court committed constitutional error in case charging embezzlement from an Indian tribal organization, when it took judicial notice that the telephone company from which money was taken was a tribal organization). In related cases, it has been held that the application of conclusive evidentiary presumptions in criminal cases is constitutional error. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); State v. Hebner, 108 Idaho 196, 697 P.2d 1210 (App.1985). One Alaska case, Huff v. State, 598 P.2d 928 (Alaska 1979) appears to follow a somewhat different rule. The court in Huff found no reversible error in the trial court's taking judicial notice of the fact that purchase money given to a realty agent as part of a sales transaction did not belong to the agent. This fact was an essential element of the crime charged, embezzlement. While it criticized the trial court's decision to give the judicial notice instruction, the court found no reversible error. The court distinguished this case from other judicial notice cases on the basis that the fact judicially noticed was decided by statute. The court also found that the error was harmless. Id. at 935.

10364829

Lynis WRIGHT, f/k/a Lynis Gregorio, Appellant, v. James GREGORIO, Appellee

Wright v. Gregorio

1993-07-16

No. S-4885

772

775

855 P.2d 772

855

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:58.921546+00:00

CAP

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

Lynis WRIGHT, f/k/a Lynis Gregorio, Appellant, v. James GREGORIO, Appellee.

Lynis WRIGHT, f/k/a Lynis Gregorio, Appellant, v. James GREGORIO, Appellee. No. S-4885. Supreme Court of Alaska. July 16, 1993. Kathy J. Keck and Carol Daniel, Alaska Legal Services Corp., Fairbanks, for appellant. No appearance for appellee. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

1876

11516

OPINION MOORE, Chief Justice. I. INTRODUCTION In this divorce case, the trial court directed Lynis Wright to pay James Gregorio $50.00 per month for child support. Wright asserts that because she and Gregorio share physical custody of their daughter, the trial court's award of support is erroneous. We reverse. II. FACTS AND PROCEEDINGS James Gregorio and Lynis Wright obtained a divorce in 1991. Judge Niesje J. Steinkruger awarded the couple joint legal custody of their then three-year-old daughter, Keri. Though Gregorio received primary physical custody, Judge Steinkruger awarded Wright substantial visitation rights, allowing her to have Keri from Wednesday at 5:00 PM to Thursday at 8:00 AM each week, from Friday at 5:00 PM through Monday at 8:00 AM on alternate weekends, and for six weeks in the summer. During the six weeks that Wright has Keri over the summer, Judge Stein-kruger awarded Gregorio reciprocal weekend visitation rights, on the same schedule that Wright has at other times. Judge Steinkruger directed Wright to make monthly child support payments of $50.00. Earlier in the proceedings, the judge re marked that "[financially both parents are able to meet this child's physical needs" and noted without comment her disagreement with the Custody Investigator on this issue. Otherwise, she gave no explanation for the child support award. Wright moved to amend the judgment, arguing that because the judgment directed that Keri reside with her at least 30 percent of the year, the court should have calculated child support according to the formula for shared physical custody under Alaska Civil Rule 90.3(b). Judge Stein-kruger found that Wright indeed had custody of Keri 38.9 percent of the time, but nonetheless denied Wright's motion to change the child support award. Wright appeals. III. DISCUSSION A parent has shared physical custody of children if they "reside with that parent for a period specified in writing of at least 30 percent of the year, regardless of the status of legal custody." Alaska R.Civ.P. 90.3(f). In such a circumstance, the trial court must calculate child support using the shared physical custody formula of Civil Rule 90.3(b), rather than the sole custody formula of Rule 90.3(a). The court cannot deviate from this formula except "for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied." Alaska R.Civ.P. 90.-3(c)(1). In addition, the judge must explain in writing "the reason for the variation, the amount of support which would have been required but for the variation, and the estimated value of any property conveyed instead of support calculated under the other provisions of this rule." Id. Good cause for deviating from a Rule 90.3calculation includes a finding that the obligor spouse's income is below the poverty level. Alaska R.Civ.P. 90.3(c)(1)(B). However, a parent who owes support but whose income is below the poverty level must pay a minimum of $50.00 a month. Id. This minimum monthly payment is mandatory, regardless of whether the Rule 90.3analysis yields a lower figure, and even if the court does no examination for good cause. See Rule 90.3 cmt. VI.C. However, the express language of section (c)(1)(B) provides that if the shared physical custody formula is applicable and results in a smaller payment, then the obligor parent owes the smaller amount. Because Judge Steinkruger failed to make explicit findings as to the income of each party and how she calculated it, we cannot determine whether her award of child support was proper under Rule 90.3. In addition, she failed to set out the Rule 90.3calculations themselves. Adequate findings of fact on such matters are essential, so that a reviewing court may clearly understand the grounds on which the lower court reached its decision. Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992). Judge Steinkruger's only comment as to the incomes of the parties was a cursory remark that Gregorio and Wright each had the financial means to meet Keri's needs. We recently held that "mere references to the parties' relative financial positions fail to provide the raw numbers necessary for a Civil Rule 90.3 calculation." Id. at 812. Therefore, we must remand this case for additional factual findings. Nonetheless, the award itself gives a strong indication of Judge Steinkruger's calculations. Most likely, Judge Steinkruger calculated Wright's support obligation as though Gregorio had sole physical custody, used the formula provided in Civil Rule 90.3(a), determined that Wright's income was below poverty level, and assessed her the $50.00 minimum monthly obligation. However, Wright has physical custody of Keri 38.9 percent of the year, and therefore has shared physical custody of her. Thus Judge Steinkruger should have used the shared custody formula of Civil Rule 90.-3(b), unless either party presented clear and convincing evidence that the formula's application would have led to manifest injustice, such that a variation in the award under Rule 90.3(c) would be proper. We REVERSE and REMAND the superi- or court's decision for specific factual find ings on the income of the parties, for findings on the calculation of the parties' child support obligations under Civil Rule 90.3, and for proceedings consistent with this decision. . Read literally, the text of Rule 90.3(c) directs a $50.00 minimum monthly obligation only when the court departs from a higher figure calculated under Rule 90.3(a) or (b), and not when the formula of either paragraph (a) or paragraph (b) itself yields a figure lower than $50.00. However, the commentary to Rule 90.3 supports the reading that we have adopted: "Even if the obligor has an income of less than the poverty level, or no income at all, a minimum support of $50.00 per month applies." Cmt. VI.C. An examination of the rule's history shows that the drafters intended to set up a minimum support obligation, on the grounds that a parent could satisfy this debt from his or her permanent fund dividend or from an AFDC disbursement. . According to the commentary on Rule 90.3(c), "[t]he minimum level may be reduced . under 90.3(b) based on the offset of the other parent's support obligation." Cmt. VI.C. The rule history indicates that the drafters intended such a result. . We offer the following sample calculation as a guide. At the outset, we note that Judge Stein-kruger made no express findings of fact regarding the incomes of the parties. Though we are using figures from the child support affidavits that Wright and Gregorio provided, we do so for purposes of illustration only. We do not reach the question of whether these figures accurately state the income of each party. To determine child support obligations under the shared custody formula set out in Civil Rule 90.3(b), one first calculates what each parent would owe if the other parent had sole physical custody. Under the sole custody formula, a child support award is calculated by taking a parent's annual income — less certain adjustments for mandatory deductions, child care, and support payments from previous marriages — and multiplying it by a percentage figure that varies according to the number of children. See Alaska R.Civ.P. 90.3(a). According to the child support guidelines affidavit that Gregorio submitted to the court, his gross income is $28,006.67, after correction of a minor mathematical error. Subtracting deductions results in an adjusted gross income (AGI) of $22,940.67. Finally, one multiplies Gregorio's AGI by 20%, the percentage set out for a couple with one child, Alaska R.Civ.P. 90.-3(a)(2)(A), to arrive at an annual support award of $4,588.13. Therefore, if Wright had sole custody, Gregorio would owe her $4,588.13 per year. Next, the court repeats these calculations for Wright. Her gross income is $3,353.00, and her AGI after deductions is $2,557.40. Thus, her child support obligation under the normal calculations of Civil Rule 90.3(a) would be $2,557.40 X .20, or $511.48 per year. The poverty income guideline for one person in Alaska was $8,290 in 1991. Annual Update of the HHS Poverty Income Guidelines, 56 Fed. Reg. 6859, 6860 (1991). Very recently, the U.S. Department of Health and Human Services increased this figure to $8,700 for 1993. Annual Update of the HHS Poverty Guidelines, 58 Fed. Reg. 8287, 8288 (1993). Wright's gross income of $3,353 is below the poverty level. Therefore, if Gregorio had sole physical custody, then Wright's obligation would be $600 per year, even though the normal Rule 90.3(a) calculations would result in a smaller amount. See Alaska R.Civ.P. 90.3(c)(1)(B) & cmt. VI.C; supra note 1. Next, to figure out a child support award in a shared custody case, one takes the amount of each parent's obligation if the other had sole custody, and multiplies this figure by the percentage of time that the other parent has physical custody of the children. Alaska R.Civ.P. 90.3(b)(l)-(2). However, if the court finds that the percentage of time each parent has physical custody does not accurately reflect the ratio of funds that each parent will directly spend on supporting the children, then the court shall vary the percentage to reflect its findings. Id. For Gregorio, this formula yields the following result: $4,588.13 x .389 = $1,784.78 For Wright, the results are as follows: $600 X .611 = $366.60 Finally, one takes the resulting two figures, and assesses the parent with the larger figure child support. The amount of support is the difference between the two figures multiplied by 1.5. See Alaska R.Civ.P. 90.3(b)(3). However, if the resulting figure is higher than the amount of support that would be calculated under paragraph (a) assuming sole or primary custody, then the annual support is the amount calculated under paragraph (a). Id. Here, $1,784.78 > $366.60, so Gregorio owes Wright child support. His total annual support obligation, absent variance based on a finding of good cause, is as follows: ($1,784.78 - $366.60) X 1.5 = $2,127.27 per year Civil Rule 90.3(b)(4) governs whether Gregorio must pay his child support in a lump sum or in installments: The child support award is to be paid in 12 equal monthly installments unless shared custody is based on the obligor parent having physical custody for periods of 30 consecutive days or more. In that case, the total annual award will be paid in equal installments over those months in which the obligor parent does not have physical custody. (Emphasis added). Under the current visitation schedule, Gregorio, the obligor parent, never has custody of Keri for 30 consecutive days or more. Therefore, under the income figures that the parties provided in their child support affidavits, Gregorio would owe child support in 12 monthly installments of $177.27. . During the appeal, the trial court apparently ordered that Wright have no overnight visits with Keri for at least 60 days. If this order has the effect of reducing Wright's total visitation time below 30% for the year, then Gregorio would have sole physical custody. Nonetheless, Judge Steinkruger still would have to provide findings as to her reasoning.

10376381

David L. BELL, Appellant, v. STATE of Alaska and Harbor Adjustment Service, Appellees

Bell v. State

1993-07-23

No. S-5138

1334

1335

855 P.2d 1334

855

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:58.921546+00:00

CAP

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

David L. BELL, Appellant, v. STATE of Alaska and Harbor Adjustment Service, Appellees.

David L. BELL, Appellant, v. STATE of Alaska and Harbor Adjustment Service, Appellees. No. S-5138. Supreme Court of Alaska. July 23, 1993. Debra Fitzgerald and Chancy Croft, Chancy Croft Law Office, Anchorage, for appellant. Frank S. Koziol, Anchorage, for appel-lees. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

300

1949

OPINION BURKE, Justice. For the reasons stated in Bailey v. Litwin Corp., 780 P.2d 1007, 1011-12 (Alaska 1989), the superior court's decision is AFFIRMED. RABINOWITZ, J., with whom COMPTON, J., joins, dissenting.

10429724

Lenhart GROTHE, d/b/a Northern Exploration & Equipment Co., Appellant, v. Theodore T. OLAFSON, Appellee

Grothe v. Olafson

1983-02-18

No. 5766

602

613

659 P.2d 602

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

Lenhart GROTHE, d/b/a Northern Exploration & Equipment Co., Appellant, v. Theodore T. OLAFSON, Appellee.

Lenhart GROTHE, d/b/a Northern Exploration & Equipment Co., Appellant, v. Theodore T. OLAFSON, Appellee. No. 5766. Supreme Court of Alaska. Feb. 18, 1983. Paul W. Waggoner, Paul W. Waggoner, Inc., Anchorage, for appellant. Gerald W. Markham, Kodiak, for appel-lee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

6215

38285

OPINION RABINOWITZ, Justice. This case involves an action for damages for personal injuries Theodore Olafson received while engaged in drilling and blasting work for Lenhart Grothe. The superior court rendered a judgment for Olafson, finding: 1) that Olafson was working as an employee of Grothe; 2) that Grothe was negligent in failing to provide Olafson with safe working conditions and equipment; 3) that Grothe's negligence was a proximate cause of the injuries to Olafson; 4) that-Grothe was not entitled to raise the defense of comparative negligence; and 5) that Olafson was entitled to $56,133 in damages. Grothe appeals. Lenhart Grothe, d/b/a Northern Exploration & Equipment, Co., is a mining engineer who operates a tin mine near Nome and develops subdivisions in Kodiak. Theodore Olafson is a retired member of the laborer's union who worked for over 40 years as a driller and blaster of rock. In 1978, Grothe was developing a 32-acre parcel of land in Kodiak which contained a large rock formation. Grothe wanted to level the rock promontory so that he could install sewer and water lines as well as build on the levelled land. The rock and gravel which was produced would be available for the construction of roads in the subdivision and for sale to other contractors. In early June of 1978, Grothe hired Olaf-son to drill and blast the rock, and Olafson immediately began working. The drilling work involved the use of a large tractor-treaded hydraulic drill which is used to drive steel rods into the rock. The part of the drill which drives the steel is called the "hammer" which is mounted on the "mast" and moves up and down on a chain. The mast is attached to the "boom" which connects to the main body of the tractor. The drilling machine used by Olafson belonged to Grothe. The afternoon before the accident Olaf-son was operating the machine when the drive chain broke. To repair the chain, it is necessary to lower the mast, remove, repair and reinstall the chain, and then raise the mast. In order to raise and lower the mast, one of the connecting pins must be removed and then reinserted. Olafson repaired the chain that evening and returned the next morning to reconnect the mast and resume drilling. Olafson was injured while he was attempting to align the holes so that he could reinsert the connecting pin. Normally, the holes can be positioned by using the hydraulic system to raise the mast. Olafson testified that the hydraulic system on the drill was too weak to raise the mast from its horizontal position. He attempted, instead, to raise the mast by driving the drill forward on its tracks while the bottom of the mast was braced against a rock bank. Evidently, while Olafson was attempting to insert the pin, the hydraulic lever controlling the position of the hammer vibrated open, causing the hammer to rise on the mast. This caused the mast to become unbalanced and it flipped backwards, striking Olafson on the right side. Olafson was taken to the hospital and was treated for multiple rib fractures. He remained in the hospital for four days. After the injury, Olafson initially filed a claim with the Worker's Compensation Board. After learning that Grothe had no worker's compensation insurance, Olafson elected to maintain a tort action for damages rather than a worker's compensation claim. At the conclusion of a non-jury trial, the court rendered a judgment in Olafson's favor, but ruled that his recovery would be reduced to reflect his own comparative negligence. Olafson then filed a motion for amendment to findings and conclusions of law. He asked the superior court to reconsider its ruling regarding the defense of comparative negligence in light of Carroll v. Universal Irrigation, Inc., 18 Wash.App. 854, 573 P.2d 373 (Wash.App.1977). The superior court granted Olafson's motion and amended its conclusions so as to preclude any reduction in damages for Olafson's comparative negligence. Grothe then filed a motion for reconsideration of the comparative negligence issue. Grothe also filed a motion for relief from judgment under Civil Rule 60(b). Both of these motions were denied, and this appeal followed. I. Did The Superior Court Err In Holding That Olafson Was An Employee Rather Than An Independent Contractor? The superior court concluded that the relationship between Grothe and Olaf-son was one of employer/employee rather than general contractor/independent contractor. The court based this determination on application of the "relative nature of the work" test, set out in Ostrem v. Alaska Workmen's Compensation Board, 511 P.2d 1061 (Alaska 1973). Grothe claims the superior court's determination is unsupported by the evidence and erroneous as a matter of law. In Searfus v. Northern Gas Co., Inc., 472 P.2d 966 (Alaska 1970), this court announced that it was adopting the "nature of the work" test for determining whether a person is an "employee" under the Alaska Worker's Compensation Act. Rejecting the traditional "master-servant control" test we turned to the analysis advocated by Professor Larson. Terming this approach the "relative nature of the work" test, Larson would have the trier of fact determine 'employee' status through consideration of the character of the claimant's work or business, and the relationship of the claimant's work or business to the purported employer's business. Id. at 969. In Ostrem v. Alaska Workmen's Compensation Board, 511 P.2d 1061 (Alaska 1973), we subsequently refined the test: The 'relative nature of the work' test has two parts: first, the character of the claimant's work or business; and second, the relationship of the claimant's work or business to the purported employer's business. . . With reference to the character of claimant's work or business the factors are: (a) the degree of skill involved; (b) the degree to which it is a separate calling or business; and (c) the extent to which it can be expected to carry its own accident burden. The relationship of the claimant's work or business to the purported employer's business requires consideration of: (a) the extent to which claimant's work is a regular part of the employer's regular work; (b) whether claimant's work is continuous or intermittent; and (c) whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job. Id. at 1063. Initially, the superior court focused on the character of Olafson's work. The court found that Olafson was employed as an unskilled laborer. While it is true that Olafson was a member of the laborer's union, his work for Grothe involved drilling and blasting, a profession which requires certification and licensing by the state. Even Olafson concedes the job requires some special skills. The superior court recognized this distinction in its second finding that Olafson worked as a "powder monkey," and that this was a separate calling since the evidence showed there were only three or four people working in that field in Kodiak. As to the extent to which Olafson could be expected to carry his own insurance, the superior court found that the inherent danger of the work (dynamiting) made it unreasonable for Olafson to be self-insured. Olafson emphasizes the dangerous nature of the work as support for the argument that Grothe, not Olafson, should bear the burden of insurance coverage. One commentator has observed: The most helpful criterion suggested for use in examining the nature of the claimant's work is probably the inquiry into whether the claimant can be expected to carry his own accident burden. This consideration focuses on the economics of the independent contractor's status. Since workmen's compensation is designed to help the ordinary worker whom experience has shown is unable to meet the costs of industrial accidents out of his own resources, it is relevant to examine whether the realities of his position actually indicate this dependence on an employer's assumption of risks as a normal consequence of hiring him. Since Grothe was a developer engaged in the use and occasional sale of the rock, it was more reasonable for Grothe to bear the risk of its production. The superior court next considered the relationship of Olafson's work to Grothe's business. The superior court found that it was a regular part of Grothe's business because Grothe was in the mining business and previously had been involved in extracting rock from the subdivision. The trial court also considered whether Olaf-son's work was continuous or intermittent in nature and concluded that it was the latter. The third and final Ostrem factor the superior court considered was whether Olafson's work amounted to a hiring of continuing services as distinguished from contracting for a particular job. The court concluded that Olafson was hired for a single job, drilling and blasting work. Based on the foregoing, the superior court concluded that: Viewing the evidence as a whole, the court has concluded that it preponderates in favor of an employer, employee relationship rather than one of general contractor, independent contractor. Although we view the question as an extremely close one, we are persuaded that the superior court did not err in finding an employment relationship. II. Did The Superior Court Err In Finding Grothe Negligent? A. Duty owed Grothe was under a duty to avoid creating a situation which would pose an unreasonable risk of harm to Olafson. Nazareno v. Urie, 638 P.2d 671 (Alaska 1981). In addition, since Grothe furnished the drill which was used by Olafson, he was under the further duty to exercise reasonable care to ensure that the drill was safe for its intended use. In its findings, the superior court cited several federal safety regulations originally promulgated, pursuant to the Federal Metal and Non-Metallic Mine Safety Act, 30 U.S.C.A. § 721-740. Thirty C.F.R. 56.14-25 directs that mining "machinery and equipment should be maintained properly." Thirty C.F.R. 56.14r-26 states that "unsafe equipment or machinery shall be removed from service immediately." Finally, 30 C.F.R. 56.18-20 provides: Mandatory. No employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen. The superior court did not specifically state that it found Grothe to be negligent per se for violation of these regulations. Since the court phrased its conclusions of negligence in the language of the regulations, however, it seems the superior court did adopt the regulatory provisions as the applicable standard of care in this case. Assuming that Grothe's excavation is subject to the federal regulations and applying the criteria of Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971), and Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981), we conclude that the superior court could properly adopt 30 C.F.R. 56.14-26 (unsafe equipment shall be removed) and 30 C.F.R. 56.18-20 (employee shall not be left alone in hazardous work conditions) as codified standards of due care. B. Did Grothe Breach Any Duty of Care Owed To Olafson? Unsafe Equipment The superior court found that the drill provided by Grothe had a defectively weak hydraulic system which prevented the operator from using the normal procedure to change the position of the connecting pins. Two witnesses testified that the hydraulics on the drilling machine used by Olafson were weak and would sometimes be unable to lift the boom. Olafson testified that he had previously warned Grothe that the hydraulic system was not working properly and that Grothe had promised to have it repaired. Olafson stated that if the hydraulics had been working properly, he would have been able to use the normal method and thus would not have been injured. Grothe claimed that the hydraulics were strong enough to raise the boom and that he had been able to change the position of the pins using the normal method. He testified that after the accident the machine had been used in other jobs and that there had been no problems with the hydraulics. On the other hand, Grothe admitted that Olafson had told him about a problem with the hydraulics and that Grothe had thought that the weakness was due to an air leak in the motor. Grothe stated that he had tried to repair the system but that his repairs did not seem to have made very much difference. Grothe also admitted that the drive chain on the drill had not broken during subsequent jobs. Thus, the problem Olafson had faced may simply not have arisen on these later jobs. We think there was sufficient evidence in the record to support the superior court's finding that the drill's hydraulic system was defective and that Grothe had notice of this problem. Grothe's failure to repair the drill adequately (or to provide a replacement) constituted a breach of his common law and statutory duty to provide Olafson with safe equipment. C. Was the harm to Olafson foreseeable? Grothe claims that the chain of proximate causation was broken because: 1) he was not aware of any defect in the machinery; 2) he was not aware that the chain had broken so he could not have known Olafson needed assistance; 3) Olafson's method of inserting the pin (driving the drill forward with the mast braced against the rock) was unforeseeable. We find all of these arguments devoid of merit, and therefore affirm the superior court's ruling that Olafson's injuries were a foreseeable result of the defect in the drill and the lack of assistance given to Olafson. III. Did The Superior Court Err In Ruling That The Defense of Comparative Negligence Was Not Available? In its final decision, the trial court ruled that under AS 23.30.055 and AS 23.-30.080, Grothe was not entitled to assert the defense of comparative negligence to reduce Olafson's recovery. In the initial decision, the court had found Olafson to be twenty percent negligent and had reduced the award accordingly. Grothe argues that the defense of comparative negligence is available under AS 23.25.020. AS 23.30.055 provides that when , an employer fails to secure payment of compensation, an injured employee may elect to claim compensation or to maintain an action at law for damages. In such an action, the employer "may not plead as a defense that . the injury was due to the contributory negligence of the employee." Further, AS 23.30.080 states that if the employer failed to carry insurance, the employer "may not escape liability for personal injury . sustained by an employee when the injury sustained arises out of and in the usual course of the employment because . (3) the employee was negligent In contrast, AS 23.25.020 provides that in an action brought by the employee against the employer, "the fact that the employee may have been guilty of contributory negligence does not bar a recovery where his contributory negligence was slight and the negligence of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee." Olafson relies heavily on Carroll v. Universal Irrigation, Inc., 18 Wash.App. 854, 573 P.2d 373 (Wash.App.1977), to support his argument that AS 23.30.055 and AS 23.30.080 override AS 23.25.020 and deny Grothe any comparative negligence defense. In Carroll, a Washington appellate court held that an employer who fails to secure worker's compensation insurance is barred from asserting the employee's negligence as a defense. Id. at 377. The court reasoned that the statutory provisions which deprive a non-complying employer of certain common law defenses were intended to induce employers to comply with the worker's com pensation system. Id. at 376. The court specifically rejected the defendant's argument that AS 23.25.020 preserved the defense of comparative negligence for the employer. Id. at 377 n. 4. We think the Carroll decision is correct and note with approval the following statement from that decision: A showing of comparative negligence to diminish plaintiff's award would allow the employer to escape liability for a portion of plaintiff's injuries. This would be inconsistent with the above noted policy and purpose of the workmen's compensation laws. Id. at 377. Thus, we hold that the superior court did not err in its conclusion that comparative negligence was inapplicable in the context of this litigation. IV. Was The Court's Finding That Olaf-son Was Disabled By The Injury Erroneous? The superior court concluded that Olafson was disabled due to the recurrent pain associated with his injured ribs. Dr. Loren Halter's testimony supports this determination. However, other physicians testified that Olafson was not disabled or that his inability to work was caused by his pre-existing bronchial condition or his obesity. Under Civil Rule 52(a), the superior court's findings shall not be set aside unless clearly erroneous. On this record, we are not persuaded that the superior court's findings relating to Olafson's disability are clearly erroneous. V. Did The Superior Court Err In Refusing To Grant Grothe's Motions For Relief From Judgment? Grothe filed a Rule 60(b) motion for relief from judgment on the grounds of newly discovered evidence. Specifically, Grothe sought to reopen the trial in order to present the testimony of Dr. George Stewart on the issue of Olafson's alleged disability. The superior court summarily denied the motion. Montgomery Ward v. Thomas, 394 P.2d 774 (Alaska 1964), sets out the standard for granting a new trial on the basis of newly discovered evidence: These requirements are that the 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. Id. at 776. Although Grothe filed a Rule 60(b) motion for relief from judgment rather than a Rule 59 motion for a new trial, we have indicated that when the underlying ground is "new evidence" the analysis is similar. Patrick v. Sedwick, 413 P.2d 169, 178 (Alaska 1966). The new evidence in this case consists of the testimony of Dr. Stewart, who prepared one of the reports admitted in evidence at trial. Dr. Stewart indicated in his affidavit that if permitted he would testify that in his opinion: 1) Olafson's ribs were substantially healed by the time of trial, June 1980, and perhaps as early as April 1979; 2) that Olafson had not exhibited any signs of pain or rib fractures during his preliminary testing in May 1980; and 3) that there was no indication of any lung damage or defect. This testimony would be based on his review of the X-rays and prior lab reports. Olafson asserts that this testimony does not contradict the testimony of Dr. Halter and would therefore not alter the result. If believed, Dr. Stewart's testimony would indicate that Olafson was fully recovered, with little or no pain and normal mobility. Olafson asserts that Dr. Stewart's testimony does not- qualify as new evidence, since his identity was known to Grothe's counsel well before the trial and all parties were aware that his report was to be admitted at trial. Grothe argues that he only became aware of the need for Dr. Stewart's testimony after Dr. Halter presented his opinion that Olafson's ribs had never healed and were the main source of O'lafson's continuing disability. Grothe claims he was surprised by Dr. Halter's testimony and by the admission of the X-rays which were taken the day before trial. Olafson responds that Grothe's claims of surprise are unjustified and that he has failed to satisfy the due diligence requirement for the following reasons: 1) Grothe's counsel gave no indication of surprise at trial and made no motion for a continuance to attempt to ascertain if Dr. Stewart could testify; 2) prior to trial, Grothe's counsel was provided with a copy of Dr. Halter's report which contained the same conclusions Dr. Halter presented in Ms testimony; 3) Grothe's counsel had ample opportunity to depose Dr. Halter or Dr. Stewart but neglected to do so; and 4) Grothe's counsel made no attempt to submit this new evidence in the six-week period in which the court had the matter under advisement. On the basis of the foregoing, we would conclude that Grothe failed to demonstrate that the evidence could not have been obtained upon diligent investigation. Finally, Olafson argues that Dr. Stewart's testimony was cumulative to the testimony of Dr. Eufemio and Dr. Johnson. Both physicians testified that Olafson's rib injuries from the accident were healed and would not restrict his present or future working ability. Grothe admits that Dr. Stewart's testimony would be similar to the other physicians, but claims that it would not be cumulative because of Dr. Stewart's expertise in this area. The standard for review of an order denying a Rule 60(b) motion is whether the superior court abused its discretion. Reversal is justified only if this court concludes the trial court was clearly mistaken. McCracken v. Davis, 560 P.2d 771 (Alaska 1977). We hold that the superior court's denial was well within its discretion. AFFIRMED. . At the time of the accident Olafson was 74 years old. Although he claimed he was retired from the union in 1977, receiving his union pension and social security, Olafson continued to seek employment and occasionally got jobs as a driller and blaster. The trial court found that except for the accident Olafson could have continued working for five more years. . Grothe testified he wanted from 4,000 to 8,000 cubic yards of rock produced. . Although this account of the accident is somewhat speculative, both parties seem to have accepted this version of the accident. . AS 23.30.055 provides in part: [I]f 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.... . The motion was made pursuant to Alaska R.Civ.Pro. 52, 59. . In Carroll, a Washington appellate court interpreted the Alaska Worker's Compensation Act as mandating that when an employer fails to secure worker's compensation insurance, and the employee elects to maintain an action at law (see note 4, supra), the employer may not plead the employee's comparative negligence as a defense. 573 P.2d 373, 376-77. . AS 23.30.005-.270. . 1C. Larson, Workmen's Compensation I,aw § 43.52 (1980). . 1 U.C.L.A.-Alaska Law Review 40, 55-56 (1971). . One of the more significant factors in our holding affirming the superior court's finding of an employer-employee relationship is resolution of the "burden of insurance" factor. We are also cognizant of the general trend towards liberalizing the scope of workers' compensation coverage. Juneau Lumber Co. v. Alaska Industrial Board, 122 F.Supp. 663 (D.Alaska 1954). In this regard see also: Searfus v. Northern Gas Co., Inc., 472 P.2d 966, 969 (Alaska 1970). .Metz v. Haskell, 91 Idaho 160, 417 P.2d 898 (Idaho 1966); Restatement (Second) of Torts § 392 (1965). . In order to adopt a statutory standard of care the superior court must find that the plaintiff is within the class protected by the statute and the harm/injury which occurred was the type which the statute was intended to protect against. Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971); Restatement (Second) of Torts 286 (1965). The court must also find that the statute/regulation prescribes specific conduct rather than merely a general or abstract duty of care. Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981). . The superior court also found a breach in Grothe's failure to provide Olafson with adequate assistance. There is sufficient evidence in the record to establish that the presence of an assistant would probably have prevented the accident since an assistant would have observed the movement of the hammer and would have been able to warn Olafson before the mast became unbalanced. Since Olafson was an employee, we conclude that there was sufficient evidence in the record to support the superior court's conclusion that Grothe negligently failed to provide adequate assistance. . The superior court found the defect to be in the drill's hydraulic system and the record shows that Grothe was aware of the problems with the hydraulics. Grothe had notice that the chain would break and was in need of repair. Thus it was foreseeable that a 74 year-old man engaged in drilling and blasting (with a defective machine) would need assistance at some point. Although Olafson's method of raising the mast to repair the drill was not a standard procedure, it was one of the methods which operators used in attempting to align the pin holes on the drill. Given this evidence and Grothe's admitted knowledge of the workings of this drilling machine, we hold that the superior court did not err in concluding that the method used by Olafson was foreseeable in light of the drill's defective hydraulic system. . Grothe asserts that the superior court erroneously imputed Olafson's negligence to Grothe. There was no imputation of negligence in this case. Grothe was held independently liable for the faulty hydraulic' system and his failure to provide adequate assistance to Olafson. Similarly, we find no merit in Grothe's contention that the superior court erroneously concluded that 30 C.F.R. 56.18-20 required a chuck tender to assist Olafson. The superior court concluded that "the defendant was negligent in allowing Olafson to work alone under hazardous conditions." No direct or implied reference was made to 30 C.F.R. 56.7-9 or to a requirement for a chuck tender. . Carroll v. Universal Irrigation, Inc., 18 Wash.App. 854, 573 P.2d 373 (Wash.App.1977). . We are unpersuaded by the several arguments that Grothe advances in support of application of comparative negligence. We deem it sufficient to address only one of his arguments. Grothe claims that under the general rules of statutory construction the three statutes should be construed so as to give effect to each of them, citing State v. Green, 586 P.2d 595, 603 (Alaska 1978). He asserts that this can be accomplished by holding that AS 23.30.-055 and AS 23.30.080 only preclude the defense of contributory negligence and not the comparative negligence defense provided by AS 23.25.-020 of the Employers' Liability Act. The problem with this approach is that it glosses over an apparent direct conflict between the statutes. While AS 23.30.055 only mentions contributory negligence, AS 23.30.080 is couched in broader terms and seems to bar any use of employee negligence as a defense. Where the provisions of the Employers' Liability Act (AS 23.25.010-.040) conflict with those of the Worker's Compensation Act we have held that the latter prevail. Haman v. Allied Concrete Products, Inc., 495 P.2d 531 (Alaska 1972); Gordon v. Burgess Construction Co., 425 P.2d 602 (Alaska 1967). . In conjunction with this specification of error, Grothe asserts that the superior court failed to make findings of fact regarding Olaf-son's disability. Civil Rule 52(a) provides that in actions tried without a jury, the court, in rendering its decision, shall set out specific findings of fact and conclusions of law. The trial court's duty is to make findings sufficient to give a clear understanding of the basis of its decision in order to enable an intelligent review on appeal. State v. I'Anson, 529 P.2d 188 (Alaska 1974). Grothe argues that the superior court made no finding as to the cause of Olafson's disability. He claims that given the conflicting testimony of the medical experts a specific finding on the disability should have been made. The parties' arguments on Olafson's alleged disability break down into three main positions: 1) that Olafson's injuries were healed and he was free from disability; 2) that Olafson was disabled but his disability was due to pre-existing bronchitis; or 3) that Olafson was disabled by the recurrent pain of the unhealed fractured ribs. The superior court found that Olafson suffered broken ribs and severe pain as a result of the accident and that Olafson's injuries caused a loss in his future earning capacity. In our opinion the superior court's findings regarding Olafson's disability are stated with sufficient specificity to satisfy the requirements of Civil Rule 52. .Dr. Halter conducted several examinations of Olafson. On the basis of his examinations, including X-rays, he testified that Olafson's rib fractures had not healed properly and that considering Olafson's age they would not heal in the future. Dr. Halter stated that Olafson complained of pain, that this pain was caused by the unhealed ribs and that they could prevent him from resuming his normal activities. Dr. Halter further testified that he could not state whether Olafson's prior bronchitis was severe enough to disable Olafson but that it was probably aggravated by the rib fractures. . A clearly erroneous finding is: [Ojne which leaves the supreme court with a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding. Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978), quoting Frontier Saloon, Inc. v. Short, 557 P.2d 779, 781-82 (Alaska 1976) (per cu-riam). . Grothe also contends that additional expert testimony was needed to relate Olafson's rib fractures to his alleged disability and that there was not any specific expert testimony establishing a connection between this rib injury ánd the disability. In our view, Grothe's claim that there was no expert testimony connecting Olaf-son's rib injuries to his reduced earning capacity is a reiteration of his argument that the bronchitis is the source of Olafson's disability and that there was insufficient evidence to demonstrate that the rib fractures aggravated the bronchitis. Inherent in our conclusion that the superior court's findings pertaining to Olaf-son's disability were not clearly erroneous is our conclusion that Dr. Halter's expert testimony established the requisite evidentiary base for the court's findings relating to disability. . Alaska R. Civil Procedure 60(b)(2) provides that the court may relieve a party from a judgment where: Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) .

10429560

TWENTY-EIGHT (28) MEMBERS OF OIL, CHEMICAL AND ATOMIC WORKERS UNION, LOCAL # 1-1978, Appellants, v. EMPLOYMENT SECURITY DIVISION OF ALASKA DEPARTMENT OF LABOR, and Chevron U.S.A., Inc., Appellees

Twenty-eight (28) Members of Oil, Chemical & Atomic Workers Union, Local # 1-1978 v. Employment Security Division of Alaska Department of Labor

1983-02-18

No. 6126

583

594

659 P.2d 583

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

TWENTY-EIGHT (28) MEMBERS OF OIL, CHEMICAL AND ATOMIC WORKERS UNION, LOCAL # 1-1978, Appellants, v. EMPLOYMENT SECURITY DIVISION OF ALASKA DEPARTMENT OF LABOR, and Chevron U.S.A., Inc., Appellees.

TWENTY-EIGHT (28) MEMBERS OF OIL, CHEMICAL AND ATOMIC WORKERS UNION, LOCAL # 1-1978, Appellants, v. EMPLOYMENT SECURITY DIVISION OF ALASKA DEPARTMENT OF LABOR, and Chevron U.S.A., Inc., Appellees. No. 6126. Supreme Court of Alaska. Feb. 18, 1983. Randall Simpson, Jermain, Dunnagan & Owens, Anchorage, for appellants. Bruce M. Botelho, Asst. Atty. Gen., Wilson L. Condon, Atty. Gen., Juneau, for ap-pellee Employment Sec. Div. Stephen M. Ellis and Marc D. Bond, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage for appellee Chevron U.S.A., Inc. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

6432

40833

OPINION CONNOR, Justice. I. FACTS This case involves an appeal from a superior court judgment affirming the decision of the Employment Security Division of the Alaska Department of Labor [hereafter "ESD"] to disqualify striking Chevron employees from receiving unemployment compensation benefits. At issue is the construction of AS 23.20.380(9) which denies benefits to insured workers if "unemployment is due to a stoppage of work because of a labor dispute.... " The basic facts are not in dispute. Chevron U.S.A., Inc. [hereafter "Chevron"] has a marketing division which maintains and operates three facilities in the Anchorage area: a terminal dock facility, an airport facility, and a management facility in the Kenai Building on "C" Street. The 28 Chevron marketing employees involved in this case, including terminal operators, product delivery drivers, aircraft refuelers and maintenance mechanics, were represented by the Petroleum Workers Union of America prior to a de-certification election in May, 1979. Thereafter, and for the remainder of 1979, the employees sought to bargain with Chevron through their representative the Oil, Chemical and Atomic Workers Union, Local # 1-1978 [hereafter "OCAW"]. Failure of these negotiations resulted in a strike by OCAW against Chevron in 9 western states, including Alaska and Hawaii. In Alaska the strike began at 6:00 a.m. on January 14, 1980. Pickets were initially established at all three of the Anchorage Chevron facilities, and continued at least sporadically at the dock and airport facilities. Anticipating the strike, Chevron had secured some replacement personnel and had trained them on-the-job at the airport prior to January 14,1980. Chevron also brought in approximately 18 of its employees from outside of Alaska, reassigned some 10-12 employees, and hired additional local personnel and private contractors to take over the work of the strikers. Despite some initial delay, changes in operations and additional costs, Chevron was able to make all of its deliveries and continued to meet its customers' demands. The striking employees applied to ESD for unemployment benefits pursuant to the Employment Security Act, AS 23.20.-005-.535. In a decision entered on March 4, 1980, the Assistant Director of ESD denied benefits indefinitely beginning January 13, 1980. The basis of the decision was that under AS 23.20.380(9), "a work stoppage had occurred at the employer's premises because of a labor dispute, and that the said OCAW members were directly interested in the dispute that caused the work stoppage." Twenty-eight (28) members of OCAW individually appealed to the Commissioner of Labor from this determination. The appeal was considered by the Alaska Labor Commissioner as a joint appeal of all 28 members of OCAW because the legal issues involved in the appeal were the same for each. By agreement and stipulation of the parties, the only issue before the Labor Commissioner was whether there was a "stoppage of work" within the meaning and intent of AS 23.20.380(9). The appeal hearing was held before a Referee for the Department of Labor in Anchorage on April 23,1980. In his decision, the Commissioner of Labor overruled his prior interpretations of this labor dispute disqualification statute and held that the "stoppage of work" language of the statute referred to any cessation of work by the individual employee and not to cessation of the business activities of the employer. Therefore, the determina tion of the Employment Security Division, that OCAW members were disqualified from unemployment benefits during the entire period they were on strike, was sustained. An appeal of the Labor Commissioner's decision was filed in the superior court on September 5, 1980. Judge Victor Carlson, on May 11, 1981, affirmed the Commissioner of Labor's interpretation of the "stoppage of work" language in AS 23.20.380(9) and his decision denying the OCAW members unemployment benefits for the period in which they were on strike. This appeal followed. II. WHETHER THE PHRASE "STOPPAGE OF WORK" IN AS 23.20.380(9) REFERS TO THE OPERATIONS OF THE EMPLOYER OR THE INDIVIDUAL EMPLOYEE. The Alaska Employment Security Act, AS 23.20.005-535, establishes a comprehensive program which provides unemployed workers with job placement services and cash benefits during their period of unemployment. Section 23.20.380 provides certain instances and situations in which otherwise eligible employees are disqualified from receiving benefits. The sub-section at issue in this appeal reads as follows: "Sec. 23.20.380. Disqualification for benefits. An insured worker is disqualified for waiting-week credit or benefits for a week of his unemployment if with respect to the week the department finds that . .(9) during the week unemployment is due to a stoppage of work because of a labor dispute at the immediate factory, establishment, or other premises at which he is or was last employed; for the purposes of this section, each separate department of the same premises which is commonly conducted as a separate business in separate premises is considered a separate factory, establishment or other premises; this subsection does not apply if the department finds that (A) he was not participating in or directly interested in the labor dispute which caused the stoppage of work, and (B) he did not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurred any of whom were participating in or directly interested in the dispute; or (C) the labor dispute is caused by the failure or refusal of an employer to conform to the provisions of an agreement or contract between employer and the employee, or a law of the state or of the United States pertaining to hours, wages or other conditions of work, ." Appellant members of OCAW claim that the term "stoppage of work" refers to the cessation or substantial curtailment of the employer's business. Prior to this case, the Alaska Commissioner of Labor had consistently interpreted that phrase in this way, thereby providing striking workers with unemployment benefits so long as the employer's business activities were not substantially curtailed. Prior hearings focused on whether the employer's business activity had been so substantially curtailed as to constitute a stoppage of work. Appellees, ESD and Chevron, claim that the term "stoppage of work" refers to the labor of the individual employee, and therefore disqualifies anyone from receiving unemployment benefits who has individually stopped work because of a labor dispute. Both sides agree that courts in other states which have had to construe the phrase "stoppage of work" in the context of unemployment compensation have almost unanimously agreed that the phrase refers to the employer's operations rather than to the individual efforts of a particular claimant. Indeed, this interpretation was termed the "American Rule" by the U.S. Supreme Court. New York Telephone Co. v. New York State Labor Department, 440 U.S. 519, 534, 99 S.Ct. 1328, 1338 n. 24, 59 L.Ed.2d 553, 565 n. 24 (1979). ESD and Chevron contend, and the superior court agreed, that this interpretation has little to recommend it other than tradition. As the construction of the phrase "stoppage of work" is a question of law wherein no agency expertise is required for interpretation, the standard of review is the "substitution of judgment test." Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975). In order to properly construe AS 23.20.380(9) we have investigated, and herein evaluate, the reasons underlying the majority and minority interpretations of equivalent statutes in other states. A. The Statute On Its Face. As ESD points out, "the language of Alaska's statute is not the most artfully phrased." Nor is the phrase "stoppage of work" defined anywhere in the Employment Security Act. A basic principle of statutory construction is that all language in a statute should be given some meaning. Isakson v. Rickey, 550 P.2d 359, 364 (Alaska 1976). OCAW members contend that the phrase "stoppage of work" would be devoid ed meaning unless it referred to a stoppage of the plant's operations since the individual work stoppage of the employee is already referred to by the word "unemployment". The majority of courts have relied on this reasoning in construing "stoppage of work," calling it a "logical" and "common sense" reading: "If the phrase 'stoppage of work' were to be given the [minority] interpretation ., it would be both a redundant and clumsy way to express the idea.... If the statute instead read simply 'his unemployment is due to a labor dispute,' we would not hesitate to agree . that the legislature intended to disqualify from receiving benefits those employees who stop work because of a labor dispute. The legislature, however, has added a requirement that there be a 'stoppage of work.' This added requirement would be meaningless unless it referred to work stoppage at the plant; ." Continental Oil Co. v. Board of Labor Appeals, 178 Mont. 143, 582 P.2d 1236, 1240 (Mont.1978). See also, Monsanto Chemical Co. v. Thornbrough, 229 Ark. 362, 314 S.W.2d 493, 495 (Ark.1958); Inter-Island Resorts, Ltd. v. Akahane, 46 Hawaii 140, 377 P.2d 715, 720 (Hawaii 1962); Albuquerque-Phoenix Express, Inc. v. Employment Security Commission, 88 N.M. 596, 544 P.2d 1161, 1166 (N.M.1975). We agree that to interpret "stoppage of work" as cessation of work by the individual employee would make it synonymous with "unemployment." We hold that the phrase "stop- 3. The ESD claims that this is merely an "imprecision" in the wording of the statute, not a redundancy, and it stems from the fact that the statute is intended to cover a variety of situations. This explanation does little to give meaning to the phrase or its insertion in the statute. page of work" in AS 23.20.380(9) refers to the employer's operation. B. Historical Analysis All 50 states have adopted unemployment compensation laws as a part of the federal-state unemployment insurance system established under the Social Security Act of 1935. Each of these statutes has fashioned some type of "labor dispute disqualification" to bar benefits to unemployed workers if their unemployment is caused by a labor dispute. W. Lewis, The "Stoppage of Work" Concept in Labor Dispute Disqualification Jurisprudence, 45 J.Urb.L. 319, 320 (1967). There are two basic versions of this disqualification. First, there is the "labor dispute in active progress" concept. As commonly phrased, this disqualification provision reads: "An individual is disqualified for benefits for any week with respect to which the commission finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed.... " Lewis, supra, at 321-22. Under this statute, any individual unemployment caused by a labor dispute in active progress results in denial of benefits. However, the majority of the states adopted the second concept, the "stoppage of work" phraseology currently in use in Alaska, following the example of the Model Federal Draft Bill. The Model Federal Bill was in turn patterned after the language of the trade dispute disqualification of the British National Unemployment Insurance Act of 1935. 25 Geo. 5, ch. 8, § 26(1), quoted in W. Lewis, supra, at 322. The majority interpretation of "stoppage of work" is consistent with the construction given by the British courts: "When this country's fifty-one statutes were adopted, the phrase had long since acquired a settled construction from the British Umpires as referring 'not to the cessation of the workman's labour, but to a stoppage of the work carried on in the factory, workshop or other premises at which the workman is employed.' " M. Shadur, Employment Benefits and the "Labor Dispute" Disqualification, 17 U.Chi. L.Rev. 294, 308 (1950). When interpreting statutes adopted from other jurisdictions, this court generally follows the well established rule that the original jurisdiction's interpretation of a statute be adopted with the statute. City of Fairbanks v. Schaible, 375 P.2d 201, 207-08 (Alaska 1962). Under this rule many courts have found the historical interpretation of "stoppage of work" persuasive. Id. However, we will not adhere to this rule "if a precedent underlying an adopted statute [is] . no longer vital or [is] . poorly reasoned." Zerbe v. State, 583 P.2d 845, 847 (Alaska 1978). In 1937, the Alaska Territorial Legislature adopted its first Employment Security Act, which disqualified an individual for benefits if "his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute.... " (Ch. 4, § 5(d) ESLA 1937). In 1939, the legislature departed totally from this "stoppage of work" concept and disqualified an individual for 8 weeks if "his total or partial unemployment is due to a labor dispute which is in active progress.... " (Ch. 1, § 25 SLA 1939). The United States Supreme Court upheld a denial of benefits under this 1939 law in Alaska Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136, 145 (1946), finding that the commission could view a labor dispute as "active" even after the point was reached when all possibility of settlement disappeared. In 1941, the legislature removed the "active progress" section to provide for disqualification "for any week . unemployment is due to a labor dispute.... " (Ch. 40, § 16, SLA 1941). In 1955, the statute was changed again and the "stoppage of work" clause was re-inserted to provide for disqualification "for such week as unemployment was due to a stoppage of work then existing because of a labor dispute." (Ch. 5, § 741 ESLA 1955). The statute and language at issue was codified from the 1955 law and re-enacted as AS 23.20.380(9) in 1962. The Commissioner of Labor concluded from this history that it was not the legislature's intent to return to the "stoppage of work" concept. He based this conclusion on the fact that these 1955 changes were not acceptable at the regular session and were only passed in an emergency session with "great haste" and with "total concern with more weighty matters." We find this to be unsupported conjecture and speculation. Indeed, it is much more logical to conclude from the history of successive amendments that the legislature did intend just such a change. The "stoppage of work" language was re-enacted and re-incorporated into Alaska's labor dispute disqualification provision after numerous state supreme courts had interpreted the phrase, with the "overwhelming majority" adopting the "American Rule." M. Shadur, supra, at 308 (1950). Significant among these decisions is- Lawrence Baking Co. v. Michigan Unemployment Compensation Commission, 308 Mich. 198, 13 N.W.2d 260 (Mich.1944), cert. denied, 323 U.S. 738, 65 S.Ct. 43, 89 L.Ed. 591 (1944). Like the Alaska legislature, Michigan had amended its labor dispute disqualification from the "labor dispute in active progress" language to the "stoppage of work" language. In applying the disqualification to 16 striking bakery workers who had interrupted the company's operation for only 15 minutes before being replaced with new employees, the court took note of this change of statutory language and the interpretations of other courts of this phrase and concluded that the legislature intended to disqualify an employee for benefits only when his unemployment resulted from a stoppage or substantial curtailment of the work and operations of the employer establishment. In the case of Alaska's statute, it is clear that a substantive change was intended because the change in phraseology fundamentally altered the purview of the statute. Although the legislature may have enacted the statute in haste initially, the fact that the "stoppage of work" language has been retained over a twenty-seven year period of amendments and recodifications should dispel any notion that it was the unintended result of hasty enactment. Indeed, the legislature's acquiescence in ESD's formerly consistent interpretation of "stoppage of work" as meaning cessation of employer operations indicates that the legislature intended AS 23.20.380(9) to be interpreted under the majority rule. C. Policy ESD and Chevron urge, and the superior court found, that the minority interpretation is more consistent with the policy of the Employment Security Act as stated in AS 23.20.010. As we recently stated, "[t]he primary purpose of the Alaska Employment Security Act is to ameliorate the negative effects that involuntary unemployment has on both the unemployed individual and society as a whole." State Department of Labor v. Boucher, 581 P.2d 660, 662 (Alaska 1978). ESD and Chevron claim that by no stretch of the imagination can a striker's unemployment be characterized as involuntary, as he is free to return to his job at any time. Therefore, a striker's unemployment is not meant to qualify the striker for unemployment benefits. This reasoning is the bulwark of the minority view. In Board of Review v. Mid-Continent Petroleum Corp., 193 Okl. 36, 141 P.2d 69 (Okl.1943), the court cited with approval the conclusion that "the purpose of the act was to provide benefits to those who were involuntarily out of employment, and not to finance those who were willingly and deliberately refusing to work because of a failure of their employers to accede to demands for higher wages." Id. at 72. In Aero Design & Engineering Co. v. Board of Review, 356 P.2d 344 (Okl.1960), the court ignored the disqualification section of the statute and relied solely on a declaration of policy similar to Alaska's (i.e. to assist "persons unemployed through no fault of their own") and concluded that "one who is out on strike can hardly be said to be unemployed through no fault of his own.... " Id. at 345-46. There are two rebuttals to this argument. First, the general policy section of AS 23.20.010 does not override the specific enunciation of the labor dispute disqualification in AS 23.20.380(9). Insofar as there is an apparent conflict and it is impossible to give effect to both provisions, the specific provision governs over the general. State Department of Highways v. Green, 586 P.2d 595, 602 (Alaska 1978). Subsection (9) specifically states that a labor dispute will disqualify a claimant for benefits only when it results in a "stoppage of work." This particular intent controls over the general intent of ameliorating the negative effects of involuntary unemployment. See Continental Oil Co. v. Board of Labor Appeals, 178 Mont. 143, 582 P.2d 1236, 1241 (Mont.1978); Inter-Island Resorts v. Akahane, 46 Hawaii 140, 377 P.2d 715, 724 (Hawaii 1962). Second, conclusion that the voluntary or involuntary status of the unemployment is the only criterion for denial or allowance of benefits is incorrect. In Alaska a person may be voluntarily unemployed and still receive benefits if enrolled in a vocational training course, AS 23.20.382. In view of this express exception, it is clear that the voluntary-involuntary distinction is not conclusive. AS 23.20.380(9) is another specific exception to the general policy of compensating involuntary unemployment. ESD maintains that the majority interpretation of "stoppage of work" forces the state to take sides with the employee in a labor dispute by financially subsidizing his strike, thereby placing the employer "in the ridiculous position of having to finance the strike against him through his direct reim bursement of the employment insurance fund, or through taxes paid into the fund." The superior court felt that the majority decisions reflect a policy inappropriate to today's parity in labor and management strength. The court similarly concluded that it was "illogical" in that the "unsuccessful" striker is subsidized with benefits while the "successful" striker (one who substantially curtails the employer's operations) is denied benefits. This statute can be seen as attempting to chart a neutral course between two absolute approaches to the payment of unemployment benefits. If compensation were always paid to striking workers, the state would abolish the labor dispute disqualification entirely and could be viewed as always siding with the striker. If compensation were never paid to strikers (the position urged by Appellees) the state could be viewed as seriously interfering with the right to strike and thus siding with management. The legislature, by enacting the "stoppage of work" language has avoided these positions, and called upon the ESD to refrain from passing on the merits of the dispute in evaluating benefits claims. Strikers who do not stop the employers' operations qualify for benefits while those who succeed in curtailing production do not. Employers whose operations continue must therefore contribute to the fund while employers whose work is stopped do not. We do not find this scheme to be without some measure of logic. Additionálly, as was stated in Sakrison v. Pierce, 66 Ariz. 162, 185 P.2d 528, 530-31 (Ariz.1947): "At the outset it should be made clear that this court is not concerned with any questions relative to the merits of the labor controversy itself. Our discussion is not and cannot be determined by such factors. Instead it is determined by the choice that the elected legislative representatives of the people of this state have made for us. And whether or not the Act should compensate employees in this position is properly a choice for the legislature. . The function of this court, then, is simply to point out which route our legislature has chosen to travel." It is not this court's function to determine whether the scheme is out-dated or current, appropriate or inappropriate. We must simply determine what the scheme is. Therefore, we conclude that the majority interpretation of the phrase "stoppage of work" as referring to the employer's operations and not the work of the individual employee, is the sound interpretation of AS 23.20.380(9). This interpretation, providing strikers with unemployment benefits unless there has been a stoppage of the employer's operations due to the labor dispute, is supported by the language of the statute and its historical evolution. Furthermore, the majority interpretation is at least defensible in terms of policy considerations underlying the provision of unemployment benefits. Accordingly, we reverse the superior court's affirmation of the Labor Commissioner's determination that the phrase "stoppage of work" in AS 23.20.380(9) refers to the work of the employee rather than the operations of the employer. "Stoppage of work" refers to a substantial curtailment of an employer's operations. III. WHETHER THERE WAS SUCH A "STOPPAGE OF WORK" AS TO DISQUALIFY THE MEMBERS OF OCAW FROM UNEMPLOYMENT BENEFITS UNDER AS 20.23.380(9). Given the rule that a stoppage of work is to be defined in terms of a halt in operations or production at the employer's establishment rather than an individual's cessation of work, the question remains whether such a "substantial stoppage" occurred so as to satisfy the disqualification provision. W. Lewis, supra, at 327 n. 30. The factors determining "substantial stoppage" depend upon the facts and circumstances of each case (Continental Oil Co. v. Board of Labor Appeals, 178 Mont. 143, 582 P.2d 1236, 1243 (Mont.1978); Albuquerque-Phoenix Express, Inc. v. Employment Security Commission, 88 N.M. 596, 544 P.2d 1161, 1166 (N.M.1975)), and the cases appear to have inconsistent results. Most decisions follow the general practice of examining decreased production, busi ness revenue, service, number of employees, payroll, or man-hours. M. Shadur, supra, at 311; Annot., 61 A.L.R.3d, supra, at 705-06. Some cases focus primarily on interference with production, denying the payment of benefits only if production is reduced by a significant percentage, usually about twenty to thirty percent. (See, e.g., Meadowgold Dairies-Hawaii, Ltd. v. Wiig, 50 Hawaii 225, 437 P.2d 317, 320 (Hawaii 1968)). Other courts eschew reliance on a precise percentage in determining the "stoppage of work." These courts have adopted a more flexible test of "substantial" work stoppage by assessing "the main business of the employer" and determining whether that primary business purpose has been substantially curtailed. (See, e.g., Westinghouse Broadcasting Co., Inc. v. Director, of Division of Employment Security, 378 Mass. 51, 389 N.E.2d 410, 413 (Mass.1979); Continental Oil Co. v. Board of Labor Appeals, 178 Mont. 143, 582 P.2d 1236, 1244 (Mont.1978)). The third approach, the minority view advocated by the ESD, recognizes as "stoppage of work" any reduction in any business activity of the employer, including research, construction, training, planning, budgeting and methodology. Since the Labor Commissioner interpreted the phrase "stoppage of work" as referring to the work of the employee and not that of the employer, he did not have to address the question of whether or not there was a substantial curtailment of the employer's operation. Nevertheless, the Commissioner made the following observations: "Chevron was generally able to meet the demands of its customers in a safe and competent manner. I can not find that the strike resulted in decreased production, business revenue, service, number of employees, payroll,' man-hours, or any of the other factors which are normally looked to in gauging whether or not an employer's business activity has been substantially curtailed. I do however find that the following disruptions of Chevron's normal business activities did occur. Only approximately 70% of Chevron's deliveries could be made during the first few days of the strike and, as of the April 23, 1980 hearing, operations had still not reached total efficiency. Virtually no sales, engineering or other tasks normally performed by exempt employees could be performed while the strike was in progress. The refusal of teamsters, longshoremen and U.S. Postal Service employees to cross picket lines placed an extra work burden on Chevron during the course of the strike. Additional expenses of overtime, per diem, employee housing and transportation, contracted services, etc. cost Chevron an additional $22,000 to $37,000 a week to do business." The Commissioner then reached the following conclusions: "I need not address the question of whether or not their stoppage resulted in a substantial curtailment of their employer's business activity. However, if I were to do so, I would be of the opinion that their stoppage had exactly that effect. It may not have impacted Chevron's business in the traditional sense (decreased production, business revenue, service, etc.) but it definitely disrupted the normal functioning of Chevron's marketing activities and caused a notable increase in Chevron's cost of doing business." As the superior court affirmed the Commissioner's construction that the phrase "stoppage of work" referred to the employee's, and not to the employer's operations, it found it unnecessary to determine "the exact degree to which Chevron's operations were disrupted...." The members of OCAW claim that the traditional factors mentioned by the Commissioner in his decision (decreased production, business revenue, service, number of employees, payroll, man-hours) are the only factors which may be considered. They claim that the use of costs is not supported by any case authority, was non-probative, and unjust since they had no opportunity to investigate Chevron's records and accounts and rebut these claims. While it is true that there is no authority establishing costs alone as determinative, appellants are incorrect in claiming that evidence of costs is totally nonprobative. The costs incurred by Chevron as a result of the labor dispute are directly related to business revenues, one of the factors traditionally examined in determining "substantial curtailment." Furthermore, changes in production methodology caused by a labor dispute, such as the transfer of work to outside contractors might also be a legitimate factor worthy of consideration in determining whether the "main business" of the employer has been curtailed. General Electric Co. v. Director of Employment Security, 349 Mass. 358, 208 N.E.2d 234, 237 (Mass.1965). However, such non-traditional criteria are only persuasive when considered in conjunction with the traditional factors. Evidence of increased costs or changes in production methodology is not conclusive evidence of substantial work stoppage. We hold that this evidence is relevant to the issue of "substantiality" only for the purpose of establishing curtailment of the employer's main business purpose. It is not clear from the record that the Labor Commissioner considered the evidence of increased costs in only this limited sense. In fact, from the Commissioner's report it appears that the finding of substantial curtailment was based solely upon the findings of (1) increased cost and (2) reduction in activities other than the employer's main business purpose. Therefore, we remand to the superior court with instructions to remand to the ESD for a determination as to whether Chevron suffered a substantial curtailment of its main business operations constituting "stoppage of work" within the meaning of AS 23.20.-380(9). REVERSED and REMANDED. . Effective October 1, 1980, this section was repealed by Ch. 9, § 80, SLA 1980, and replaced with: "Sec. 23.20.383. Labor dispute disqualification. (a) An insured worker is disqualified for waiting-week credit or benefits for a week of his unemployment if, for that week, the department finds his unemployment is due to a stoppage of work caused by a labor dispute at the immediate establishment or other premises at which he is or was last employed...." The substance of the section, including the stoppage of work clause, remains essentially the same. The legislature saw fit to establish this as a separate section and added the word "his" before unemployment. . A review of the Annotation, Construction of Phrase "Stoppage of Work" in Statutory Provision Denying Unemployment Compensation Beneñts During Stoppage Resulting from Labor Dispute, 61 A.L.R.3d 693 (1975), reveals that most courts which have interpreted this language have held that it refers to the work of the employer, not the employee. Oklahoma apparently remains the only state whose highest court holds to the contrary. Board of Review v. Mid-Continent Petroleum Corporation, 193 Okl. 36, 141 P.2d 69 (Okl.1943). Since 1975, the highest courts of three more states have followed the majority rule and under this statutory language allowed strikers to collect unemployment benefits so long as their activities have not substantially curtailed the produc-five operations of their employer. See Continental Oil Co. v. Board of Labor Appeals, 178 Mont. 143, 582 P.2d 1236 (Mont.1978); Albuquerque-Phoenix Express, Inc. v. Employment Security Commission, 88 N.M. 596, 544 P.2d 1161 (N.M.1975); Shell Oil Co. v. Brooks, 88 Wash.2d 909, 567 P.2d 1132 (Wash.1977). . Appellees argue unpersuasively that two rules of statutory construction support the contrary interpretation. (1) Under the doctrine of the last antecedent, which states that a limiting clause in a statute is generally to be restrained to the last antecedent (see C. Sands, Sutherland Statutory Construction, § 47.33, at 159 (4th ed. 1973)), the last antecedent is urged to be a "labor dispute" not a "stoppage of work." Therefore, Appellees conclude, the thing which must exist in order to disqualify the employee from unemployment benefits is a labor dispute, not a stoppage of work. (2) Under the doctrine that the same words or phrases are presumed to have the same meaning when used in different parts of a statute (see Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 725 (9th Cir.1978)), the word "work" in the statute is urged to mean that of the employee rather than that of the employer. Therefore, Appellees conclude, when used in the phrase "stoppage of work," it must again refer to the work of the employee, not the employer. We find these technical rules of grammatical construction to be unhelpful in ascertaining the legislative intent of this section. . The Model Federal Bill provides: "An individual shall be disqualified for benefits . (d) For any week with respect to which it is found that- his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed...." Social Security Board, Draft Bills for Unemployment Compensation of the Pooled Fund and Employer Reserve Account Types (1936), quoted in W. Lewis, supra, at 322. . Additionally, the most recent amendment of the statute (see supra note 1) indicates that if the legislature had wanted to identify an individual's "stoppage of work," it would have inserted the pronoun "his" before "stoppage of work" just as it did when identifying an individual's "unemployment". . AS 23.20.010 provides: "Policy. As a guide to the interpretation and application of this chapter, the public policy of the state is declared to be as follows: Economic insecurity due to involuntary unemployment is a serious menace to the health, morals and welfare of the people of the state. Involuntary unemployment is, therefore, a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden and to maintain purchasing power as a factor in stabilizing the economy of the state. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment, from which benefits may be paid for periods of involuntary unemployment. The legislature, therefore; declares that, in its considered judgment, the public good and the general welfare of the citizens of the state require the enactment of this measure, under the police power of the state, for the operation of public employment service offices and for the establishment of an employment security program to be used for the benefit of eligible unemployed persons." . In affirming the Commissioner's decision, the superior court ruled in part upon the provisions of AS 23.20.380(9)(A), (B) and (C). These sections generally provided exemptions from the stoppage of work denial of benefits found in AS 23.20.380(9), and read as follows: Disqualification for beneñts. An insured worker is disqualified for waiting-week credit or benefits for a week of his unemployment if with respect to the week the department finds that (9) during the week unemployment is due to a stoppage of work because of a labor dispute at the immediate factory, establishment, or other premises at which he is or was last employed; for the purposes of this section, each separate department of the same premises which is commonly conducted as a separate business in separate premises is considered a separate factor, establishment or other premises; this subsection does not apply if the department finds that (A) he was not participating in or directly interested in the labor dispute which caused the stoppage of work, and (B) he did not belong to a grade or class or workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurred any of whom were participating in or directly interested in the dispute; or (C) the labor dispute is caused by the failure or refusal of an employer to conform to the provisions of an agreement or contract between employer and employee, or a law of the state or of the United States pertaining to hours, wages or other conditions of work; or

10429763

STATE of Alaska, Petitioner and Cross-Respondent, v. Kenneth E. HUGGINS and Terrence Connors, Respondents and Cross-Petitioners

State v. Huggins

1982-09-17

Nos. 6535, 6595

613

624

659 P.2d 613

659

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

STATE of Alaska, Petitioner and Cross-Respondent, v. Kenneth E. HUGGINS and Terrence Connors, Respondents and Cross-Petitioners.

STATE of Alaska, Petitioner and Cross-Respondent, v. Kenneth E. HUGGINS and Terrence Connors, Respondents and Cross-Petitioners. Nos. 6535, 6595. Court of Appeals of Alaska. Sept. 17, 1982. Michael McLaughlin, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for petitioner and cross-respondent. Michael P. McConahy, and Paul A. Barrett, Call, Dewitt & Barrett, Fairbanks, for respondents and cross-petitioners. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3784

23744

OPINION SINGLETON, Judge. Kenneth E. Huggins and Terrence Connors were charged as a result of separate and unrelated incidents with driving while intoxicated. During their respective trials the state sought to introduce a group of documents that the parties refer to collectively as the "breathalyzer packet," as a foundation for the admission of the results of breathalyzer examinations administered to Huggins and Connor. See AS 28.35.-033(d). During the state's case-in-chief District Court Judge Stephen R. Cline upheld Connors' objection to the admissibility of the breathalyzer packet into evidence. Subsequently, Superior Court Judge Gerald J. Van Hoomissen granted the state's motion for a stay of the proceedings. The state also sought interlocutory review of Judge Cline's ruling before the superior court pursuant to Alaska Rule of Appellate Procedure 610(b)(1). Judge James R. Blair granted the state's petition for review. Judge Cline did not file a written opinion in Connors and the jury has not been dismissed. Huggins' jury trial also commenced before Judge Cline. Judge Cline also sustained Huggins' objection to admission of the breathalyzer packet. The state requested and was granted a stay of proceedings pending a petition for review. The superior court remanded the case to Judge Cline for reconsideration, and he issued a written opinion setting out his reasons for the suppression order. The state petitioned separately for hearings before the superior court acting as an intermediate appellate court under Alaska Rule of Appellate Procedure 610(b)(1). Judge Blair issued a memorandum opinion in Huggins granting the state's petition for review and affirming the decision of Judge Cline in excluding the breathalyzer packet. Judge Blair disapproved Judge Cline's holding that the breathalyzer packet was ex-cludable hearsay under Alaska Rule of Evidence 803(8)(b), but affirmed his holding that the documents were excludable as improperly authenticated under Alaska Rule of Evidence 902. The following day Judge Blair issued a memorandum opinion in Connors, which followed his Huggins decision. The state petitioned for a hearing in this court and the two eases were consolidated. The state sought review of the portion of Judge Blair's order concerning Alaska Rule of Evidence 902. Connors and Huggins filed their response and cross-petition seeking review of Judge Blair's order holding the breathalyzer packet admissible under Alaska Rule of Evidence 803(8). We have granted both the petition for hearing and . cross-petition. We stayed Huggins' and Connors' trials pending our decision, and subsequently issued an order affirming in part and reversing in part Judge Blair's decision. We held that the documents contained in the breathalyzer packet, while hearsay, are within the Alaska Rule of Evidence 803(8) public records exception to the hearsay rule and are not rendered individually or collectively inadmissible under Alaska Rule of Evidence 803(8)(b)(i) — (iii). We also held that subject to certain modifications the various documents are self-authenticating under Alaska Rule of Evidence 902(4). ADMISSIBILITY OF THE BREATHALYZER PACKET UNDER THE PUBLIC RECORDS EXCEPTION. We follow Wester v. State, 528 P.2d 1179 (Alaska 1974), decided before adoption of the new evidence rules, and hold that the breathalyzer packet is admissible under Alaska Rule of Evidence 803(8)(a). Wester held that the "ampule certification and breathalyzer calibration need not be the subject of personal testimony and are clearly admissible under the official records exception to the hearsay rule." 528 P.2d at 1183. Huggins and Connors argue that Evidence Rule 803(8) supercedes Wester and that admissibility of the breathalyzer packet is inconsistent with the language of the rule, the policy behind that rule, and the preservation of the appellees' sixth amendment rights to confrontation. We disagree. We find that admission of the breathalyzer packet under Evidence Rule 803(8)(a) is not precluded by the exceptions to the rule provided in Evidence Rule 803(8)(b) (i)-(iii). Those rules must be read in context with Evidence Rule 803(8)(a). Specifically, the references to "factual findings" in the sub-paragraphs of Evidence Rule 803(8)(b) must be read in light of the language — "factual findings resulting from an investigation made pursuant to authority granted by law" — embodied in Evidence Rule 803(8)(a). Where a state employee investigates a specific case likely to result in litigation and can foresee the part his findings might play in the resolution of that litigation, he may be motivated to alter his findings to influence that result. We believe that factual findings excluded by Rule 803(8)(b)(i)-(iii) are limited to such situations. Consequently, the calibration of the breathalyzer, 7 AAC 30.050, the certification of ampoules, 7 AAC 30.060, a certification that a given person is legally qualified to calibrate the breathalyzer, 7 AAC 30.-070(3), or a certificate that a given laboratory is approved, 7 AAC 30.060(a), (d), do not constitute "factual findings" from a specific investigation, governed by Evidence Rule 803(8)(a). The factual findings included in the records that comprise the breathalyzer packet are compiled in the regular course of business by government officials in advance of any specific case in which the breathalyzer tested will be used. An official would have no motive to misrepresent those facts because the nexus between his findings and a particular result on a particular prosecution is too attenuated. Since the person certifying the machine has no knowledge of a specific case, he has no incentive to misrepresent. See Palmer v. Hoffman, 318 U.S. 109, 110-15, 63 S.Ct. 477, 479-481, 87 L.Ed. 645, 648-51 (1943), aff'g Hoffman v. Palmer, 129 F.2d 976 (2d Cir. 1942). An ordinary police accident report is often colored by the officer's judgment and frequently incorporates opinions gathered from second-hand sources who have a stake in pending litigation. The Department of Health and Social Services is the agency charged with the responsibility of promulgating regulations concerning the use of the breathalyzer. While it is a state agency, it has no motive to attempt to affect the outcome in a particular case. The packet itself is merely a record of factual findings recorded in the regular course of business, a record made independently and well in advance of any particular prosecution. Public records that are prepared pursuant to official duty as a regular activity unconnected with litigation are normally reliable and trustworthy. To interrupt public business by requiring the personal testimony of each officer involved in compiling a particular breathalyzer packet would appear to serve no useful purpose, in the absence of some evidence in a specific case that a specific record was inaccurate. See Wester, 528 P.2d at 1181; 5 J. Wigmore, Evidence § 1631, 1633, at 617-18, 623-24 (J. Chad-bourn rev. 1974). So long as the proffered facts were those recorded within the scope of the official duty of a public servant the evidence is admissible. Admission of the breathalyzer packet pursuant to Evidence Rule 803(8)(a) does not violate Huggins' and Connors' sixth amendment right to confrontation. The United States Supreme Court has recognized exceptions to the hearsay rule that do not violate the confrontation clause. See Kirby v. United States, 174 U.S. 47, 60, 19 S.Ct. 574, 579, 43 L.Ed. 890, 896 (1899); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (can permit testimony of now deceased witness in former trial upon same indictment to be used as evidence in new trial, without violating confrontation clause); See also C. McCor mick, Law of Evidence § 252, at 606 n. 10, 607 n. 13 (2d ed. 1972) (citing cases in which hearsay held not to violate right of confrontation). We hold that the breathalyzer packet is admissible, but Huggins and Connors were not denied an opportunity to substantively challenge it. See also Keel v. State, 609 P.2d 555, 557 (Alaska 1980) (holding that breathalyzer test results are assailable after being admitted into evidence; statute only creates presumption of test's validity); Cooley v. Municipality of Anchorage, 649 P.2d 251, 254-55 n. 8 (Alaska App., 1982) (ordinance allows prosecution to introduce breathalyzer test results, but results still may be attacked as invalid). A person charged with driving while intoxicated may call witnesses to testify to inaccuracies in the testing procedure, and may challenge the factual findings themselves after an independent analysis of the breath sample or some other method of verification. Further, "[e]ven after admission of the breathalyzer test results, the burden is still upon the municipality to convince the jury that the breathalyzer test is accurate and that the defendant's blood or breath alcohol was above the prohibited level at the time of driving." Cooley, 649 P.2d at 255. Huggins and Connors were not denied an opportunity to substantively confront the evidence presented against them. ADMISSIBILITY OF THE BREATHALYZER PACKET AS SELF-AUTHENTICATING The state challenges Judge Blair's holding that the breathalyzer packet is inadmissible on the grounds that the documents are not self-authenticating under Evidence Rule 902(l)-(2) or (4). We agree that the documents in the breathalyzer packet are not self-authenticating under Evidence Rule 902(l)-(2). However, we reverse, with minor qualifications, the holding that they were not self-authenticating under Evidence Rule 902(4). We base our decision on five grounds which we discuss in turn. First, Evidence Rule 902(4) requires that each official record to which it applies must be "authorized by law to be recorded or filed and actually recorded or filed in a public office." Each of the significant component parts of the breathalyzer packet is authorized to be filed by 7 AAC 30.010-.080, and was recorded or filed as required. See 7 AAC 30.060(c)-(d) (certification of ampoules); 7 AAC 30.030-040, .070(3) (certification that the "calibrator" of the breathalyzer is licensed to calibrate it); 7 AAC 30.050(b)(2)-(3) (certificate of breathalyzer calibration); and 7 AAC 30.060(a), (d), .080(2) (certificate that a laboratory is "approved" to certify ampoules). Second, Evidence Rule 902(4) does not require that the original document, a copy of which is filed or recorded, be authenticated under Evidence Rule 902(l)-(3) as a condition precedent to authentication of the copy under Rule 902(4). Rather, Rule 902(4) authorizes the public custodian of an official record filed in his custody to authenticate a copy of it by his certification. The custodian's certificate itself must comply with Rule 902(1) or (2), depending on whether the custodian has a seal. Separate certification as to individual documents in the packet is not required unless the documents are certified by different custodians, so long as a certification as to multiple documents makes clear, on its face, the documents to which it applies. Helen Beirne, the Commissioner of Health and Social Services, has a seal. Harry Colvin, the custodian of the public records which contain the various documents included in the breathalyzer packet, apparently does not. have a seal. We hold therefore that Beirne's certification that Colvin's signature is genuine and that he is the official custodian of the records contained in the first four parts of the breathalyzer packet satisfies Evidence Rule 902(2), thus making those public records included in the packet certified by Colvin admissible under Alaska Evidence Rule 902(4). Third, we hold that absent evidence to the contrary, the trial court should presume that what purports to be a state official's signature, under seal, certifying a document, or a signature, or that a person is a public custodian, is in fact a valid signature even if the signature is a stamped or printed facsimile. We believe AS 11.56.610(2) and AS 11.56.900(4), which make proffering false evidence a felony, act as sufficient deterrents to the illegal use of an official's facsimile signature or seal so as to justify reliance on facsimiles. Additional protection is afforded by the seal. An unauthorized person would have to have access to both the seal and the signature stamp to perpetrate a fraud. Since neither Huggins nor Connors suggests that Beirne was not Commissioner of Health and Social Services, or that she did not authorize the use of her stamp, we find that use of her facsimile signature complies with Evidence Rule 902(l)-(2), (4). Fourth, in accordance with 7 AAC 30.070(2)-(3), the Department of Public Safety is required to file the names of breathalyzer instructors and operators who have been qualified under the regulations with the Department of Health and Social Services. Assuming the department complies with this regulation, the custodian of the state records, in this case Colvin, may properly authenticate a breathalyzer instructor's certification for calibration ⅛ three ways. First, the custodian may review the records on file and certify that the names of certain individuals appear therein as qualified instructors. See Keel v. State, 609 P.2d 555, 558 (Alaska 1980); Evidence Rules' 1005 and 1006. A certification from the custodian similar to the one presented in the packet, which stated on its face that the information contained therein was based on a personal review of the documents filed pursuant to 7 AAC 30.070, would suffice. Second, the state may elect to submit properly authenticated copies of the actual records designating authorized instructors filed at the Department of Health and Social Services pursuant to Evidence Rule 902(4). Third, the breathalyzer instructor can personally certify that, he is a qualified instructor. Keel, 609 P.2d at 559 n. 12. Finally, the Department of Health and Social Services' Division of Public Health must file with the department as a public record a list of those laboratories authorized by the department to certify breathalyzer ampoules. See 7 AAC 30.060(a), .080(2). A certification of breathalyzer ampoules should reflect that it came from an authorized laboratory. The trial courts were concerned that the breathalyzer packet contained (1) an ampoule certification signed by Arthur Hel-muth, chemist II, Department of Public Safety Crime Laboratory, P.O. Box 6188, Annex, Anchorage, Alaska 99502 and, (2) a certification by Helen D. Beirne, Commissioner of Health and Social Services, that the Criminal Investigation Bureau Laboratory, Department of Public Safety, 5700 E. Tudor Road, Anchorage, Alaska, was approved to verify ampoules for breath testing but that no connection was established between Helmuth and the laboratory he served, and the laboratory approved by Commissioner Beirne. The state argues that these two laboratories are in fact one and the same. If Colvin is the custodian of the records listing authorized laboratories he may review them and, subject to Evidence Rules 1005 and 1006, state that he is the custodian of the records, that he has reviewed them, and certify that named laboratories appear in the public records as "approved laboratories" and that the laboratories in question are the same. The state can also introduce extrinsic evidence to show that the laboratory which employs Helmuth is in fact the same laboratory referred to in Beirne's certificate. See Evidence Rules 101(c), 104 and 1008. Finally, if it is established that Helmuth is employed by an authorized laboratory, then he could personally certify that he tested the ampoules in the course of his employment in compliance with 7 AAC 30.060. See Keel, 609 P.2d at 559 n. 12. Therefore, we hold that the breathalyzer packet, subject to the foregoing modifications, satisfies the requirements of self-authentication under Evidence Rule 902(4). We caution the parties that our finding that the appropriately modified packet is admissible does not imply that the packet is unassailable. Our holding merely speaks to the preliminary foundational requirements of admissibility and does not preclude a substantive challenge to the factual findings of the packet. See Keel, 609 P.2d at 557. Subject to these qualifications we REVERSE the order denying the admissibility of the breathalyzer packet and REMAND this case to the district court for further proceedings consistent with this opinion. APPENDIX 1 APPENDIX 2 APPENDIX 3 APPENDIX 4 APPENDIX 5 . The "packet" was offered as a foundation for evidence that a breathalyzer exam had been administered. It consisted of six documents: (a) a certificate of the test results for randomly-selected ampoules of the lot used in the breathalyzer analysis in the particular case; (b) a certificate that the calibrator of the particular breathalyzer machine was licensed to calibrate it; (c) a certificate of calibration for the particular machine; (d) a certificate and permit stating that the Department of Public Safety's Criminal Investigation Bureau Laboratory is licensed to operate a laboratory for verification of the chemical composition and volume of ampoules used for breath-testing procedure; (e) a certificate from Dr. Harry J. Colvin, Chief of the Section of Laboratories of the Department of Health and Social Services, stating that the preceding papers are "true and correct copies of such documents which are in my legal custody" and their facts are "true and correct"; and (f) a certificate from the Commissioner of the Alaska Department of Health and Social Services, Helen D. Beime, stating that Dr. Colvin is the custodian of the records of the laboratory section and that his signature is genuine. The documents offered in these cases are included as an appendix to.this opinion. . Alaska Rule of Evidence 803(8) provides: Hearsay Exceptions-Availability of Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (8) Public Records and Reports, (a) To the extent not otherwise provided in (b) of this subdivision, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. (b) The following are not within this exception to the hearsay rule: (i) investigative reports by police and other law enforcement personnel; (ii) investigative reports prepared by or for a government, a public office or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the state in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. Any writing admissible under this subdivision shall be received only if the party offering such writing has delivered a copy of it or so much thereof as may relate to the controversy, to each adverse party a reasonable time before the trial, unless the court finds-that such adverse party has not been unfairly surprised by the failure to deliver such copy. . Wester was decided pursuant to former Alaska R.Civ.P. 44(b), which has been superceded by Alaska R.Evid. 803(8). We are in agreement, however, with the commentary to Alaska R.Evid. 803(8) that "[w]hile this rule may appear, at first blush anyway, to be at odds with Webster v. State [sic], supra, that case would be decided the same way under these rules." The goals of both rules are the same. First, both rules provide exceptions to the hearsay rule where it is clear that the reliability and trustworthiness of the evidence is assured. Second, with public records, where the reliability is generally not in dispute, the rules promote the efficiency of public activities by eliminating the necessity of having public officials repeatedly testifying to the validity of those records. . U.S. Const, amend. VI provides in part: In ail criminal prosecutions, the accused shall enjoy the right to . be confronted with the witnesses against him. Alaska Const, art. 1, § 11, provides in part: In all criminal prosecutions, the accused . is entitled to . be confronted with the witnesses against him. . Municipality v. Serrano, 649 P.2d 256 (Alaska App., 1982), holds that the state must preserve the breath sample of an individual who takes the breathalyzer test or provide other methods of verification, so as to afford the defendant the opportunity to independently analyze the sample in accordance with the defendant's due process rights under Alaska Const, art. 1, § 7. . Alaska Rule of Evidence 902(l)-(2), (4) provide: Seif-Authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. (2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and the signature is genuine. (4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any enactment of the Alaska Legislature or other rule prescribed by the Alaska Supreme Court. . AS 11.56.610(2) provides: Tampering with physical evidence, (a) A person commits the crime of tampering with physical evidence if he (2) makes, presents, or uses physical evidence, knowing it to be false, with intent to mislead a juror who is engaged in an official proceeding or a public servant who is engaged in an official proceeding or a criminal investigation; AS 11.56.900(4) defines "physical evidence" as "an article, object, document, record, or other thing of physical substance." . 7 AAC 30.070(2)-(3) provides: MATERIALS TO BE FILED. The Department of Public Safety shall file the following materials with the Department of Health and Social Services: (2) the names of instructors conducting courses in each training session; (3) the names and addresses of persons successfully completing the training; . .

10433881

Lloyd K. CLARK and Robert L. White, d/b/a Engineering Science of Alaska, a General Partnership, Appellants, v. CITY OF SEWARD, a Municipal Corporation, Appellee

Clark v. City of Seward

1983-02-25

No. 5457

1227

1233

659 P.2d 1227

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

Lloyd K. CLARK and Robert L. White, d/b/a Engineering Science of Alaska, a General Partnership, Appellants, v. CITY OF SEWARD, a Municipal Corporation, Appellee.

Lloyd K. CLARK and Robert L. White, d/b/a Engineering Science of Alaska, a General Partnership, Appellants, v. CITY OF SEWARD, a Municipal Corporation, Appellee. No. 5457. Supreme Court of Alaska. Feb. 25, 1983. Thomas J. Yerbich, Wadsworth, Stanley & Yerbich, Anchorage, for appellants. Kenneth P. Jacobus, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee. Before RABINOWITZ, C.J., CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

3698

22347

OPINION MATTHEWS, Justice. In February of 1971 appellant, Engineering Science of Alaska (ESAL) contracted with appellee, the City of Seward, to perform engineering services as required for the design and construction of a sewage treatment plant and for the extension of the City's water and sewer systems to a new subdivision. The contract called for ESAL to prepare a preliminary engineering report for review by an agency of the federal government and by the City. After, such review, the City could then direct ESAL to prepare a detailed design of the project, but the City was under no obligation to do so until it was satisfied "that funds are then or will be available within one year, in an amount sufficient to pay the entire project costs." The preliminary engineering report was completed before July 30,1971. A modified report was authorized by the City on April 6, 1972, to deal with industrial water flows. This was submitted to the City in November of 1972. On July 25, 1973, the City directed ESAL "to proceed with the preliminary and final design of the project." In August of 1973 the City was advised that the Environmental Protection Agency (EPA) had recently promulgated a requirement that a study be made of any existing sewer system as a condition to the allocation of grant funds for sewage treatment plants. The study had two parts. First, an infiltration and inflow analysis was to be conducted to determine if too much clear water was entering the system. Secondly, if it was determined that there was a problem in this respect, a report evaluating the cost and effectiveness of various means of dealing with the problem was required. A first phase draft report was completed in October of 1973 and forwarded to the City, EPA, and the Economic Development Administration (EDA). It' concluded that a serious excess inflow problem existed during the winter. This was caused by water users leaving faucets on to prevent freezing, a practice necessitated by the fact that a large number of the water lines in the City were too shallow. The excessive flow of clean water in the system would require, according to the report, a treatment plant larger than would otherwise be needed, and resulted in high water system pumping costs. Further, the report questioned whether the dilute waste could be effectively treated with a conventional biological system and suggested that a more complex and expensive method of treatment might be required. The draft report outlined a corrective action program including excavating and lowering shallow water lines or, where feasible, insulating or installing heat tapes on them, installing water meters to discourage water wastage, and passing City codes to insure proper installation of new lines. The report also recommended that the corrective action program be declared eligible for a grant to the extent of 87 ½% of its cost and concluded that the second phase of the required study proceed to establish detailed corrective recommendations and costs, and treatment plant design. On October 27, 1973 a representative of the EDA wrote the City asking whether it had any objection to using meters in order to conserve water. The City Manager's response, given on November 12, 1973, was that while the City did not object to water meters per se, "such an installation for individual residential services would create problems in installation, servicing and would also result in reduced flows with increased incidents of freezing. This would be detrimental to the system and would cost thousands of dollars to maintain and repair." The City Manager suggested as a counter proposal metering commercial accounts only as "one which may fare better before the City Council." On November 27, 1973, the City Manager reported by letter to ESAL that the City Council had reviewed the infiltration and inflow analysis, and "have no adverse comments to make regarding it other than to point out a few of the many problems which apparently will be encountered in trying to install meters for residential and commercial use in Seward." The problems included the high cost of metering, the need to dig out most of the service lines and mains in the City in order to either lower them, or insulate them and install antifreez-ing devices, and the extensive disruption and repaving that this would entail. The City's letter concluded: If you will incorporate these problems as an addition to the report we have no objection to its being transmitted to the EPA or the State of Alaska for their review. ESAL responded on December 6, 1973 that the draft phase I infiltration/inflow analysis had already been transmitted to EPA and the State and that copies of the city's letter would be forwarded to them. ESAL noted that "the specific problems identified . are those which would be evaluated by the phase II survey work as proposed.... " On December 10, 1973, the EDA notified the City that the installation of water meters, apparently throughout the City, would be required as a condition of a grant for the water system expansion. In March of 1974 the EDA formally offered a grant with this condition. The EDA letter of December 10 requiring water meters caused the City Council to hold a public hearing on the matter on January 28, 1974. The hearing was well attended, and most citizens who testified were strongly against the installation of residential water meters. ESAL wrote the City on February 19, 1974, advising it that the second phase of the EPA-required study had not yet taken place and that if the study showed that rehabilitation of the water system was not cost effective, EPA would fund a sewage treatment plant adequate to process the unrehabilitated system, while if cost effectiveness was shown EPA would fund the rehabilitation costs as well as the treatment system. ESAL, however, was never given the authority to proceed with the second phase of the study and on April 24,1974 the City terminated its services. The cause for termination was, as expressed by the City Manager at trial, "the fact that they did not resolve the [water meter] question." The City then hired another engineer who represented them in their dealings with the various governmental agencies involved. After a delay of more than a year the City was able to obtain grants for the water and sewer system expansions and for a sewage treatment plant which required commercial, but not residential water meters, and did not require that existing water lines be lowered or otherwise protected from freezing. The projects were bid in 1976, and subsequently constructed. The residents of Seward still leave their faucets on to keep their pipes from freezing, and freezing problems persist due to shallow water lines. ESAL filed suit against the City to recover fees for services performed of $47,620.00 and lost profits of $20,392.00. The City answered denying liability, and counterclaimed for additional costs caused by ESAL in an amount in excess of $200,-. 000.00. At the trial the City claimed that the projects had been delayed for two years, from 1974 to 1976, due to ESAL's negligence. This, it claimed, caused an increase in costs of some $207,000.00. In addition, it claimed damages of $79,000.00 for substitute engineering services in excess of those it would have incurred had ESAL performed its contract. The jury returned a verdict allowing ESAL $31,365.00 on its claim and awarding the City $234,966.21 on its counterclaim. ESAL moved for judgment N.O.V., and, in the alternative, for a new trial. The motion was denied. On appeal ESAL claims that the court erred in failing to grant its motion for judgment N.O.V. or for a new trial, in admitting certain evidence relating to apparent deficiencies in ESAL's uncompleted plans, and in awarding attorney's fees to the City. Judgment N.O.V. ESAL did not move for a directed verdict at the close of the evidence. Such action is, by the express terms of Civil Rule 50(b), required as a condition of a motion for judgment N.O.V. We therefore hold that the superior court's denial of ESAL's motion for judgment N.O.V. must be affirmed. Metcalf v. Wilbur Inc., 645 P.2d 163, 169-70 (Alaska 1982). New Trial Motion "The matter of granting or refusing a new trial rests in the sound discretion of the trial judge." If there was an eviden-tiary basis for the jury's decision, the denial of a new trial must be affirmed. On the other hand, where "the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust," a reversal of a denial of a new trial is proper. Finally, in reviewing the denial of a motion for a new trial, we must view the evidence in the light most favorable to the non-moving party. Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981) (citations, footnote omitted). The court instructed the jury as follows with respect to the standard of care owed by an engineer to his client: In performing professional services for a client, an engineer has the duty to have that degree of learning and skill ordinarily possessed by reputable engineers, practicing in the same or a similar locality and under similar circumstances. It is his further duty to use the care and skill ordinarily used in like cases by reputable members of his profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and his best judgment in the exercise of his professional skill and in the application of his learning, in an effort to accomplish the purpose for which he was employed. Instruction No. 33. With respect to ESAL's conduct concerning the EPA mandated sewer system analysis there is no evidence in the record that ESAL failed to meet the standard expressed in this instruction. The evidence which comes closest is that of the City's subsequently employed engineer, Sidney Clark, who testified to the effect that if he, rather than ESAL, had been representing the City from the outset, he believed that EDA would not have initially insisted on residential water meters. This testimony, in our view, falls short of supporting a conclusion that ESAL did not use appropriate professional care in acting as it did to recommend the examination of a comprehensive solution to Seward's water and sewer problems. There is evidence that the unfinished design drawings of ESAL which were taken over by Clark did contain certain errors and omissions. However, there is no evidence that these shortcomings contributed to the two year delay on which the $207,000.00 claim was based. Likewise, the city's contract substituted services claim of $79,-000.00 does not itself support the $207,-000.00 delay claim. The City has suggested that the bulk of its damage claim is supported by ESAL's "episodic pattern" of performance from the outset of this contract in 1971. However, there was no testimony that ESAL did not meet the standard of professional care in proceeding from the outset as it did. At trial the City Manager was asked by counsel for the City whether ESAL's delays were unreasonable; instead of giving an affirmative answer to that question, he stated that "what was unreasonable was the deaf ear . . that was happening at the end," relative to the controversy regarding water meters. In conclusion it is our view that evidence supporting that portion of the verdict in favor of the City in excess of $79,000.00 is completely lacking. Since it does not appear that the issues pertaining to the counterclaim are distinct and separable, a new trial on the entire counterclaim is required. REVERSED AND REMANDED. . Civil Rule 50(b), governing motions for judgment N.O.V., provides, in part: Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after the entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. . Mr. Clark's testimony on this point is as follows: Q. Do you believe that there was any delay in your expert opinion? And then if the answer is yes what the delay was. A. I believe if I had had the opportunity to present the evidence to both agencies after it had been clearly understood by the City and the alternatives including water meters where required, had been properly presented, I do not believe that the requirement of EDA would have read residential water meters at any time. I believe the — the requirement would have read an ordinance for deeper mains, an ordinance for better construction of — of service connections, an ordinance for water meters on the industrial and commercial users because that's what they accepted from me. Q. There would have been no requirements for residential users? A. There would have been no requirements for residential users. There is no requirement except for new users and they are not metered. It's just a depth requirement. Tr. 353-55. . The City's breach of contract delay claim was in substance identical to its claim in tort for delay damages for the following reasons. First, ESAL's duty was a duty of appropriate professional care imposed by law. The contract only gave rise to that duty. Under such circumstances we consider the gravamen of the claim to lie in tort. Van Horn Lodge, Inc. v. White, 627 P.2d 641, 643 (Alaska 1981). Second, the required standard of care would not differ under tort or contract theories. Third, the jury was not instructed as to separate standards. . See Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Alaska 1981). We find that the evi-dentiary point raised by ESAL is without merit; its point regarding attorney's fees need not be decided since a new trial has been ordered.

10376453

Edward A. DILLEY, d/b/a The Pop Shoppe, Appellant, v. KETCHIKAN GATEWAY BOROUGH, Appellee

Dilley v. Ketchikan Gateway Borough

1993-07-23

S-5408

1335

1337

855 P.2d 1335

855

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:58.921546+00:00

CAP

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

Edward A. DILLEY, d/b/a The Pop Shoppe, Appellant, v. KETCHIKAN GATEWAY BOROUGH, Appellee.

Edward A. DILLEY, d/b/a The Pop Shoppe, Appellant, v. KETCHIKAN GATEWAY BOROUGH, Appellee. S-5408. Supreme Court of Alaska. July 23, 1993. Kenneth D. Lougee, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellant. Teresa S. Williams, Borough Atty., Ket-chikan, for appellee. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

1150

7542

OPINION COMPTON, Justice. This appeal arises out of a sales tax dispute between the Ketchikan Gateway Borough (Borough) and Edward Dilley, a licensed pull-tab operator. Dilley was assessed over $400,000 for uncollected sales taxes, and interest, on gross revenues from pull-tab sales. The Borough Assembly denied Dilley's appeal and upheld the assessment. The superior court affirmed. We reverse. I. FACTUAL AND PROCEDURAL BACKGROUND Dilley operates pull-tab games under a state license. Typically, non-profit organizations retain Dilley to operate a pull-tab game for fund-raising purposes. See AS 05.15.100(a). Pursuant to the statutory framework, these organizations pay Dilley a fee for operating the pull-tab game. Dil-ley then remits the net proceeds from pull-tab sales to the non-profit organization. See AS 05.15.112, .165(a), .210(23). For a number of years, Dilley conducted pull-tab games in the Borough. Dilley paid sales taxes on the net proceeds of pull-tab sales, i.e., gross receipts minus prizes awarded. Disputing this calculation, the Borough requested remittance of sales taxes on the gross receipts from pull-tab sales. When this payment was not forthcoming, the Borough assessed against Dilley the uncollected amount of sales tax and interest, estimated to be in excess of $400,000. Dilley appealed this decision to the Borough Assembly. After his appeal was denied, Dilley appealed to the superior court. Alaska R.App.P. 602(a)(2). In addition to arguing that the Borough's sales tax applied only to net proceeds of pull-tab sales, Dilley alternatively argued that the tax was unconstitutional, and that the tax did not apply to the sale of pull-tabs at all. The superior court affirmed the Borough's decision. This appeal followed. II. DISCUSSION At issue is whether the sale of pull-tabs is subject to the Borough's sales tax. As this is a question of statutory interpretation not involving agency expertise, the appropriate standard of review is the substitution of judgment test. Public Employees' Local 71 v. State, 775 P.2d 1062-63 (Alaska 1989). The Borough^ levies a 1.5% sales tax "upon all rents, retail sales and services in the borough, except those hereinafter specifically exempted from the tax." Ketchi-kan Gateway Borough Code (KGB) 45.20.-010. "Retail sale" is defined to mean "any nonexempt sale of services, rentals or tangible personal property made to a buyer who intends to use the item purchased for his own personal use." KGB 45.20.005 (emphasis added). Dilley argues that pull-tabs are intangible personal property which are not subject to taxation under the ordinance. The Borough disputes this classification, arguing that pull-tab games are "amusement services" subject to taxation. Dilley's argument that the sale of pull-tabs constitutes a sale of intangible property, rather than a provision of services, is persuasive. Black's Law Dictionary defines "intangible property" as follows: As used chiefly in the law of taxation, this term means such property as has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stocks, bonds, promissory notes, copyrights, and franchises. Black's Law Dictionary 809 (6th ed. 1990). In this case, the pull-tab represents the contractual right to receive payment of prize money if the patron uncovers a winning combination. This conclusion is supported by cases from other jurisdictions. For example, the Supreme Court of Minnesota held that a "Big Perfecta" dog race ticket constituted intangible personal property:' The "Big Perfecta" ticket embodied [the right to receive money] contingent on the winning of a race or races by some dog or combination of dogs. When this contingency was satisfied, appellants received a check, which it is hard to characterize as anything other than "income . from intangible personal property." Hillstrom v. Commissioner of Revenue, 270 N.W.2d 265, 267 (Minn.1978). Similarly, the United States Court of Appeals for the Fifth Circuit has described lottery tickets as "more in the nature of choses in action, being in some respects memoranda of conditional promises to pay." United States v. Mueller, 178 F.2d 593, 594 (5th Cir.1949). Because pull-tabs constitute intangible personal property, they are not subject to the Borough's sales tax. The Borough's sales tax ordinance could be amended to cover pull-tab sales, as the state statutory scheme does. See AS 05.15.184 (providing for tax of 3% on gross receipts minus prizes awarded). However, the existing ordinance cannot be construed to cover the sale of pull-tabs. III. CONCLUSION Pull-tabs are intangible property not subject to the Borough's sales tax ordinance. The decision of the superior court is REVERSED and the superior court directed to enter judgment consistent with this opinion. . A "pull-tab game" is defined as "a game of chance where a card, the face of which is covered to conceal a number, symbol, or sets of symbols, is purchased by the participant and where a prize is awarded for a card containing certain numbers or symbols designated in advance and at random." AS 05.15.210(28) (Supp. 1992). . Both the superior court and the Borough use the term "amusement services," even though this term is not used in the ordinance in question. This use becomes extremely questionable given the Borough's reliance on cases in which a statute specifically provides for taxation of "amusement services." See Chilivis v. Fleming, 228 S.E.2d 178 (Ga.App.1976). The ordinance in question provides only for taxation of "any nonexempt sale of services, rentals or tangible personal property." KGB 45.20.005. Further, the language of the Borough Code itself militates against the Borough's expansive interpretation. The ordinance does not define "services." However, it does define "remuneration for services" to mean "gross remuneration received for furnishing labor and materials for accomplishing a specified result." KGB 45.20.-005. Dilley has not furnished labor and materials for a result specified by his patrons. .Dilley confuses the issue somewhat by focusing on the relationship between the non-profit organization and the pull-tab operator. While it is true that the transaction between these parties falls within the definition of "services for remuneration," this point is irrelevant. The transaction at issue is the sale of pull-tabs to individual pull-tab patrons. . Responding to the Borough's characterization of pull-tab sales as a service, Dilley points out that the sale of any intangible personal property can be so characterized. For example, a broker's sale of stock can be construed as an "investment service," and a banker's sale of a certificate of deposit as a "banking service." However, such characterizations ignore the underlying nature of the property involved. . The superior court's attempt to distinguish Hillstrom is unpersuasive. The superior court suggests that Hillstrom addressed only whether race track tickets were tangible property, not whether the sale of such tickets represented a service. However, the superior court ignored Hillstrom's discussion of the nature of the property involved.

10376313

Debbie M. NIX, Appellant, v. Daniel L. NIX, Appellee

Nix v. Nix

1993-07-23

No. S-4916

1332

1334

855 P.2d 1332

855

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:58.921546+00:00

CAP

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

Debbie M. NIX, Appellant, v. Daniel L. NIX, Appellee.

Debbie M. NIX, Appellant, v. Daniel L. NIX, Appellee. No. S-4916. Supreme Court of Alaska. July 23, 1993. Maryann E. Foley, Anchorage, for appellant. Allen M. Bailey, Law Offices of Allen M. Bailey, Anchorage, for appellee. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

1216

7456

OPINION MATTHEWS, Justice. Debbie and Daniel Nix were married in 1984 and have one child, born in 1986. Debbie and Daniel petitioned for dissolution of their marriage and the superior court entered a decree of dissolution in February 1990. The decree required Daniel to pay Debbie monthly child support in the amount of $936. A letter written sometime after the hearing on their petition for dissolution, signed only by Debbie, states her agreement to reduce the child support payments to $300 per month until such time that Debbie asks Daniel to increase the amount back to $936 per month. Daniel acknowledges that Debbie eventually exercised this right. He then increased the child support payment to the full $936 per month. After a period of time, the Child Support Enforcement Division (CSED) claimed that Daniel was $8,841.54 in arrears on his child support payments. These arrearages accrued because Daniel had reduced his child support payments to $300 per month in accordance with the letter. When presented with the letter, the CSED did not recognize its effect and continued to consider Daniel in arrears. After the CSED's claim of arrearages, Daniel filed a motion to vacate the child support arrears with the superior court. In an order dated November 22, 1991, the superior court granted Daniel's motion without any accompanying explanation. Debbie appeals. Debbie raises two main arguments against the validity and effect of the letter. First, she argues that a child support waiver, to be valid, must be presented to the court for approval at or prior to the time the court enters its decree. Absent such initial judicial approval, Debbie argues that a child support waiver cannot be given binding effect. Second, Debbie argues that even if pre-decree judicial approval is not required, a child support waiver is not valid until given judicial approval. In other words, a child support waiver is only valid prospectively, i.e., from the date of judicial approval. We rejected both arguments under similar facts in Malekos v. Yin, 655 P.2d 728 (Alaska 1982). Since Malekos, however, AS 25.27.065 and Alaska Civil Rule 90.3 have come into being. The question, then, is how these subsequent developments change the results otherwise dictated by Malekos. We have previously explained the history and intended effect of Rule 90.3, as well as its interplay with AS 25.27.065. Cox v. Cox, 776 P.2d 1045 (Alaska 1989). As noted in Cox, Rule 90.3 grew out of the Federal Child Support Enforcement Amendments of 1984. The federal act sought to push states towards "greater consistency and predictability in awarding child support." Id. at 1047. The federal measure reflected Congress' belief that "child support is often set at inadequate levels." Id. at 1048. In response to the federal act, Rule 90.3 was developed. Whereas Malekos accorded the parents a measure of freedom in bargaining away child support, Rule 90.3's "guidelines reflect a paternalistic view toward child support agreements." Id. Thus, a court may deviate from the Rule 90.3 child support schedule only upon "good cause" and a court is "not required to find that good cause existed merely because the parties had reached an agreement." Id. at 1049. Given Rule 90.3's negative view of party autonomy concerning child support, AS 25.-27.065's provision for child support waivers could have proved troublesome. As we noted, "it is reasonably arguable that the legislature in enacting [AS 25.27.065] intended a positive declaration that signed, written waivers of child support would be effective where the custodial parent could support the needs of the child adequately." Id. at 1048 n. 6. We declined to so hold, however, because: The legislative findings accompanying the enactment [of as 25.27.065] speak of enhancing the efforts of those who are seeking to enforce the payment of child support obligations, the hardship experienced by children and families who must rely on support from a non-custodial parent, and the cost that must be borne by the general public because of inadequate child support from non-custodial parents. No mention is made of the benefits which might flow from allowing parents to enter into agreements waiving child support. Thus, the mere fact that an agreement may comply with this statute does not mean that it is free from the operation and effect of Rule 90.3. Our holding that the parties cannot by contract evade the operation of Rule 90.3 therefore does not conflict with this statute. Id. (emphasis added). Cox, then, established that no parental agreement regarding child support is valid until it receives judicial scrutiny under Rule 90.3. This principle leads us to three conclusions relevant to the present case. First, a child support waiver is not valid and enforceable until a court has reviewed and approved the waiver's substantive adequacy under Rule 90.3. Second, where a child support award has been established through an initial dissolution proceeding, any subsequent proposed waiver must be presented to the court for review under the modification procedures provided for in Rule 90.3(h)(1). Third, a child support waiver presented after the initial dissolution proceeding will be given only prospective effect from the date of judicial approval. Our first and third conclusions above dispose of the present case. Under the first and third conclusions, the child support waiver at issue in this case could only receive prospective effect from the date of the superior court's order. Daniel admits, however, that Debbie has validly revoked the waiver as to any future child support. Thus, the letter of waiver had no effect. For this reason, we REVERSE the order of the superior court and REMAND for further proceedings. . The letter is dated February 1, 1989. Both parties agree, however, that the date "1989" was incorrect and that the letter was actually written and signed after the dissolution hearing, but before entry of the decree, in 1990. . (a) . An agreement to waive past or future child support, made between an obligor and a person who is entitled to receive support on behalf of an obligee, is not enforceable unless (1) the agreement is put in writing at the time the agreement is made; and (2) the agreement is signed at the time it is made by both the obligor and the person acting for the obligee. (c) In a separation, dissolution, or divorce proceeding, a court may not accept a waiver of support by a custodial parent without proof that the custodial parent can support the needs of the child adequately. AS 25.27.065(a), (c) (emphasis added). . Pub.L. No. 98-378, § 18(a), 98 Stat. 1321 (1984) (codified at 42 U.S.C. § 667 (Supp.1987)). . Civil Rule 90.3(h)(1) provides: A final child support award may be modified if allowed by federal law or upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15-percent greater or less than the outstanding support order. . This result flows from Rule 90.3(h)(2)'s prohibition against retroactive modification of child support arrearages.

10358470

STATE of Alaska, Petitioner, v. Donald J. McPHERSON, Respondent

State v. McPherson

1993-07-02

No. S-4294

420

423

855 P.2d 420

855

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:58.921546+00:00

CAP

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

STATE of Alaska, Petitioner, v. Donald J. McPHERSON, Respondent.

STATE of Alaska, Petitioner, v. Donald J. McPHERSON, Respondent. No. S-4294. Supreme Court of Alaska. July 2, 1993. John A. Scukanee, Asst. Atty. Gen., Office of Sp. Prosecutions & Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for petitioner. Rex Lamont Butler, Anchorage, for respondent. Before MOORE, C.J., RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

1301

8277

OPINION BURKE, Justice. I. Introduction The State of Alaska petitions for hearing from the decision of the court of appeals reversing the trial court's sentence of twenty years imprisonment for defendant Donald J. McPherson. The State challenges the court of appeals' decision to remand the case for resentencing not to exceed fifteen years of imprisonment, including suspended time. We reverse and remand for resentencing. We do not place a maximum length of term on the sentence or express a view that 15 years is necessarily an acceptable term of imprisonment. II. Facts and Proceedings In July, 1988, Donald J. McPherson was indicted for drug dealing at Jack's Arcade. During his first week on the job at Jack's, McPherson sold drugs to an 18-year-old undercover informant on five different occasions. Four transactions involved the sale of marijuana (one gram each time) and the fifth involved the sale of two grams of cocaine. McPherson was twenty-five years old when he committed the offenses. This was not McPherson's first encounter with the law. McPherson previously served three years probation for two felonies, burglary in the first degree and theft in the second degree. During his first year of probation, McPherson was convicted of another felony, assault in the third degree. For this offense, he served a two year presumptive term. Although he completed an alcohol recovery program during his sentence, McPherson resumed alcohol and drug use shortly after his release. After submitting a positive urinalysis for cocaine, McPherson was returned to custody on July 1, 1988. McPherson was on work release for the third degree assault conviction when he was charged with the present offenses. A jury convicted McPherson of one count of misconduct involving a controlled substance in the first degree (sale of cocaine to a minor), an unclassified felony. McPherson was also convicted of four counts of misconduct involving a controlled substance in the third degree (sale of marijuana to a minor). Because of his two previous felony convictions, the trial court considered McPherson a third felony offender for sentencing purposes. The court sentenced McPherson to twenty years imprisonment for the sale of cocaine to minors. This sentence was based upon a benchmark of twenty to twenty-five years. Judge Johnstone established this benchmark after first acknowledging that he did not "know the benchmark in this type of case." Additionally, Judge John-stone sentenced McPherson to concurrent six-year terms for each count of misconduct involving the sale of marijuana to minors. The court of appeals affirmed McPherson's conviction but reversed his sentence. The court of appeals found that Judge Johnstone's sentence was "clearly erroneous" and remanded the case to the trial court with directions to impose a sentence of not greater than fifteen years imprisonment including suspended time. McPherson v. State, 800 P.2d 928, 932 (Alaska App.1990). III.Discussion The sentence imposed by a trial court should be affirmed unless it is clearly mistaken. State v. Wentz, 805 P.2d 962, 965 (Alaska 1991). We hold that the trial judge erred in this case by creating and then relying on a benchmark of twenty to twenty-five years imprisonment for an unclassified felony. The trial judge established a benchmark of twenty to twenty-five years in an arbitrary manner and failed to provide a supporting rationale in his memorandum decision. While the trial court then correctly applied the Chaney criteria to find the appropriate sentence, the result is clearly erroneous because it is founded on the assumption of an arbitrary benchmark. AS 12.55.005; State v. Chaney, 477 P.2d 441 (Alaska 1970). While we agree with the court of appeals that the case must be remanded for resentencing, we do not agree that a twenty year sentence is necessarily excessive. To support its conclusion that McPherson's sentence could not exceed fifteen years, the majority below compared the facts of the present case with prior, dissimilar case law. McPherson, 800 P.2d at 931-32 and n. 1. Here, the court of appeals erred. In reviewing the reasonableness of a particular sentence, the appropriate touchstone is not unrelated case law. Rather, the appellate court should adhere to the "clearly mistaken" test. As we noted in State v. Bumpus, 820 P.2d 298, 305 (Alaska 1991) (quotation omitted), this implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify_" Although 'permissible range of reasonable sentences' has never been precisely defined, it is obviously a function in any particular case of such considerations as the presence of aggravating factors, the psychological make-up of the defendant, the need for isolation, and the sentences imposed in comparable cases.... Further, as we noted in State v. Wentz, 805 P.2d 962, 965 (Alaska 1991), the "particular facts of the individualized case [must be examined] in light of the total range of sentences authorized by the legislature for the particular offense." Using this method, we find that a twenty-year sentence in this case is not necessarily excessive. The statute regarding misconduct involving a controlled substance in the first degree provides a sentencing range of five to ninety-nine years. AS 11.71.010(c); AS 12.55.125(b). A review of McPherson's acts in the present case alone support a sentence closer to that of the statutory minimum. However, McPherson was not a first time offender. He has two prior felony convictions. In fact, he was still on work release from his most recent conviction when he committed the present offense. Further, there is insufficient prior case law concerning the unclassified felony offense of sale of cocaine to a minor for a reviewing court to determine, in the first instance, what the appropriate maximum sentence should be. In light of these considerations, the trial court's twenty year sentence is not necessarily excessive. We agree with dissenting Chief Judge Bryner that, "[a]t this juncture, . it [is] premature to declare either that a twenty-year sentence would necessarily be excessive or that a fifteen-year sentence would necessarily be acceptable." McPherson, 800 P.2d at 935. Rather than dictate a sentence, we prefer to let the trial court determine the sentence, using the standard articulated in this opinion. See State v. Graybill, 695 P.2d 725, 729 (Alaska 1985) (trial court has primary responsibility to determine appropriate sentence); Bumpus, 820 P.2d at 305; Wentz 805 P.2d at 965. That portion of the court of appeals' opinion which directs the trial court to impose a sentence of not greater than fifteen years of imprisonment, including suspended time, is REVERSED. The case is REMANDED for resentencing without a limiting direction as to maximum length of sentence. . We granted the State's petition for hearing, with Justice Matthews dissenting, on March 12, 1991. . In considering the Chaney factors, Judge John-stone concluded that McPherson was a "very poor candidate for rehabilitation," that a substantial sentence was necessary to deter McPherson and others from selling drugs to minors, and that a lengthy term was necessary to isolate McPherson to protect the public. Judge Johnstone also found that McPherson had a willingness to sell drugs to minors. He found that McPherson, while working at the arcade, made 50-70 sales of marijuana per day to juveniles as young as fifteen years old. . Benchmarks must be based on "past sentencing decisions dealing with similarly situated offenders." McPherson at 933 (Bryner, C.J., dissenting).

10433637

AMFAC HOTELS AND RESORTS, INC. and Marriott Corporation, Appellants/and Cross-Appellees, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee/and Cross-Appellant

AMFAC Hotels & Resorts, Inc. v. State, Department of Transportation & Public Facilities

1983-02-18

Nos. 5833, 6124

1189

1194

659 P.2d 1189

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

AMFAC HOTELS AND RESORTS, INC. and Marriott Corporation, Appellants/and Cross-Appellees, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee/and Cross-Appellant.

AMFAC HOTELS AND RESORTS, INC. and Marriott Corporation, Appellants/and Cross-Appellees, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellee/and Cross-Appellant. Nos. 5833, 6124. Supreme Court of Alaska. Feb. 18, 1983. Susan Wright Mason, Atkinson, Conway, Bell & Gagnon, Anchorage, for appellants/cross-appellees. Martha Mills, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee/cross-appellant. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ. .

2866

18062

OPINION MATTHEWS, Justice. This appeal arises from an action brought by AMFAC Hotels and Resorts, Inc. ("AM-FAC") to reform a contract for concession rights to Anchorage International Airport. In 1953, the United States government and Northwest Airlines, Inc., AMFAC's predecessor in interest, executed an agreement granting Northwest the exclusive right to sell food and beverages in the airport terminal building for a period of ten years. In 1961, the State and Northwest amended the agreement to give Northwest first refusal rights to all new operations and extended the term of the agreement to June 30,1984. A subsequent amendment in 1968, entitled "Supplemental Agreement No. 3," placed geographical limitations on the scope of the first refusal rights. Attached to the Supplemental Agreement as "Exhibit C" was a diagram of the layout of Anchorage International Airport with a 1600' diameter circle superimposed upon it. Article XI of the agreement provided that Northwest would enjoy a right of first refusal to new concessions "within the area designated as Exhibit C." In December 1979, the State announced that concession rights to a new satellite terminal north of the area encompassed by Exhibit C would be open to public bid. The State and AMFAC were at the time negotiating to extend Supplemental Agreement No. 3. However, due to the State's public bidding announcement they could not agree on the scope of concession rights previously granted, and resolved to settle the question, if necessary, through litigation. AMFAC subsequently filed suit asserting that the parties to the 1968 agreement intended that Northwest's concession rights include all expansions of the passenger terminal facilities, whether or not within the bounds of Exhibit C. It based this assertion on the alleged outcome of a meeting which occurred prior to the execution of Supplemental Agreement No. 3. On May 29, 1968, Harold Strandberg, then Commissioner of the State Department of Public Works, and Roland Chambers, then Director of Properties for Northwest, met with other Northwest and State officials to reach an agreement on the scope of Northwest's rights. According to the affidavits and testimony of both Strandberg and Chambers, the general understanding reached at the meeting was to grant Northwest first refusal rights to any expansion or addition to the passenger terminal. Exhibit C, they insisted, "simply depicted an area which included all of the contemplated terminal expansion areas at the Airport." AMFAC argued that, because the Supplemental Agreement did not express the principal parties' intentions, it should be reformed or else interpreted to grant a right of first refusal to concessions in the new satellite terminal and in any other expansions built during the term of the contract. The State, on the other hand, maintained that the parties did not intend to extend Northwest's concession rights beyond the area described by Exhibit C. The trial court agreed, and therefore refused to reform or interpret Supplemental Agreement No. 3 as urged by AMFAC. In this appeal AMFAC argues that the lower court erred in refusing to reform the Supplemental Agreement. Alternatively, AMFAC contends that the trial court should have interpreted the agreement as granting AMFAC first refusal concession rights to all passenger terminal facilities, including future expansions. REFORMATION AMFAC asserts that the trial court erroneously required it to prove that a "binding agreement" as to the scope of Northwest's concession rights existed prior to the final written execution of Supplemental Agreement No. 3. It maintains that all it had to show was "that the parties have agreed upon an object to be accomplished by the written instrument." AMFAC argues that, since the parties to the Supplemental Agreement intended that Northwest have first refusal concession rights to future expansions, reformation should have been granted. To obtain reformation of a written agreement, the party seeking it must show by clear and convincing evidence that reformation is warranted. Kupka v. Morey, 541 P.2d 740, 749-50 (Alaska 1975). Reformation of a writing is justified when the parties have come to a complete mutual understanding of all the essential terms of their bargain, but by reason of mutual mistake, or its equivalent, the written agreement is not in conformity with such understanding in a material matter. Durkee v. Busk, 355 P.2d 588, 591 (Alaska 1960) (footnotes omitted; emphasis added). We accept AMFAC's assertion that a final and binding prior agreement is not necessary to satisfy the Durkee requirement of a "complete mutual understanding." Restatement (Second) of Contracts § 155 at 406 (1981); 9 J. Wigmore, Evidence § 2417 at 61 (Chadbourn Rev.1981). However, from the record we conclude that the trial court did not in fact require AMFAC to prove that such an agreement existed. Various of the judge's comments at trial indicate that he correctly understood the applicable law. For example, he stated: Under the law which pertains to the reformation of contracts, there must be an agreement to which an imperfectly expressed agreement can be reformed. There has to be an underlying agreement, otherwise you don't have anything to which to make reformation. (Emphasis added.) AMFAC cites several passages from the judge's decision which, it claims, demonstrate that he misunderstood the correct legal standard. We disagree. In our view, the judge was attempting to describe an agreement which is "final" in the sense that no further negotiations are to take place, not "final" in the sense that it is "enforceable and binding." To us it is clear that the trial court rejected reformation because he was not persuaded by clear and convincing evidence that the State and Northwest had ever arrived at any complete mutual understanding as to the geographical scope of concession rights prior to the execution of Supplemental Agreement No. 3. AMFAC argues, however, that the evidence does establish the existence of a prior agreement with respect to the scope of concession rights. Whether it does is a question of fact and we will reverse the trial court's finding on this issue only if it is "clearly erroneous." Day v. A & G Construction Co., Inc., 528 P.2d 440, 447 n. 16 (Alaska 1974). A finding is "clearly erroneous" if the reviewing court is "convinced, in a definite and firm way, that a mistake has been committed." Alaska Foods, Inc. v. American Manufacturer's Mutual Insurance Co., 482 P.2d 842, 848 (Alaska 1971). Our review of the record convinces us that the trial court's finding that there was no prior agreement is not "clearly erroneous." The record discloses two grounds, which the lower court regarded as "totally independent," upon which that finding is based. The first ground was a lack of faith in Strandberg's testimony. A close reading of the trial transcript reveals several inconsistencies and admitted lapses of memory in Strandberg's remarks. Further, over a decade had elapsed between the time that the Supplemental Agreement was negotiated and the time that Strandberg was called upon to testify. Under these circumstances, we cannot say that the judge's doubts as to whether Strandberg accurately represented the events preceding execution of the agreement were unreasonable, particularly since reviewing courts are constrained to give deference to trial court determinations based on testimonial evidence. See, e.g., Title Guaranty Escrow Services, Inc. v. Powley, 2 Hawaii App. 265, 630 P.2d 642, 645-46 (Haw.App.1981), Jacobson v. Best Brands, Inc., 632 P.2d 1150, 1152 (Nev.1981). The second ground for the judge's finding was documentary evidence presented throughout the trial. Primarily relied upon were the following: (1) a memorandum from Strandberg to the Attorney General's office, dated June 8, 1968, suggesting that Northwest would not accept Exhibit C; (2) leases for land north of the terminal executed before the Supplemental Agreement which contained short-term cancellation provisions and stipulations that no permanent structures be erected; and (3) a site map/master plan for Anchorage International Airport prepared in 1968 which included a "passenger terminal reserve" area north of the then-existing terminal. The trial judge concluded that these documents cast doubt on AMFAC's position in two respects. First, the memo suggested that the parties had not resolved the question of the scope of concession rights at the May meeting, but had instead simply reached a tentative agreement that was to be negotiated further by the parties' attorneys. Second, the leases and the map suggested that at least the State's representatives in the negotiations recognized the pos sibility of terminal expansion beyond the area described in Exhibit C, which undermined AMFAC's assertion that both parties assumed that any further expansion would occur within the 1600' diameter circle. In our view, the trial court could reasonably conclude that the parties to the 1968 negotiations did not agree that concession rights would extend beyond the area depicted in Exhibit C. Thus, its refusal to find a prior agreement to which the written agreement could be reformed was not clearly erroneous. INTERPRETATION As an alternative to reformation, AM-FAC argues that the trial court should have interpreted the Supplemental Agreement to grant AMFAC concession rights to all passenger terminal expansions. This argument is without merit. In interpreting the provisions of a contract, it is the duty of the courts to ascertain and give effect to the intentions of the parties. See, e.g. Day v. A & G Construction Co., Inc., 528 P.2d 440, 444 (Alaska 1974); Smalley v. Juneau Clinic Building Corp., 493 P.2d 1296, 1304 (Alaska 1972). In resolving the reformation issue, the trial court found that the parties intended only what was expressed in the provisions of the written instrument. Our determination that this finding was not clearly erroneous is dispositive of AMFAC's contract interpretation claim as well. It would have been logically inconsistent for the trial court to have interpreted the contract to extend concession rights beyond the circle depicted in Exhibit C when it could not find a mutual intention to extend such rights. ATTORNEY'S FEES In its cross-appeal, the State challenges the trial court's award of $3,750.00 in attorney's fees, arguing that the amount is insufficient given the approximate 600 hours of attorney's time allegedly expended in defense of the action. In cases where, as here, a money judgment is not an accurate criterion for determining an award, attorney's fees for the prevailing party may be fixed, at the trial judge's discretion, in an amount "commensurate with the amount and value of legal services rendered." Alaska R.Civ.P. 82(a)(2). The award will be altered on appeal only if it is manifestly unreasonable and amounts to a clear abuse of discretion. Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). The trial court relied on the following factors in determining its award: (1) a defective time-keeping procedure under which the State allotted time in half-hour increments, regardless of the portion of the half-hour actually expended on the case; (2) the limited scope and complexity of the case, including the short period during which the case was pending and the short duration of the trial; (3) the determination that AMFAC had litigated in good faith; and (4) the fact that a substantial portion of the time was spent presenting affirmative defenses on which the State did not prevail. These are proper considerations in determining fee awards. State v. University of Alaska, 624 P.2d 807, 818 n. 18 (Alaska 1981); Alaska State Bank v. General Insurance Co. of America, 579 P.2d 1362, 1369 (Alaska 1978); Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970). In light of these considerations, the lower court determined that only 250 of the 611.5 hours claimed were reasonably necessary to develop and try the State's case. It further determined that the State's award should be based on 20% of these hours, at the average private billing rate of $75.00 per hour. In our view, it was well within the trial court's discretion to award the reduced amount according to the method of calculation chosen. The judgment is AFFIRMED. CONNOR, J., not participating. . Following the trial in this case, AMFAC moved to join Marriott Corporation, AMFAC's successor in interest to the concession rights at issue, as a co-appellant pursuant to Appellate Rule 517(a). This court granted that motion on May 7, 1981. . The State Department of Public Works ("State") acquired the United States' interest under the contract when it assumed operation of the airport in 1959. . Article II of Supplemental Agreement No. 3 had granted Northwest an option to extend the agreement for an additional ten-year period on renegotiated terms. . Article 1(1) of the 1980 Concession Agreement ultimately executed incorporated the 1600' diameter circle to define AMFAC's "Concession Limits". Article II of the same agreement, however, contained the following reservation: The State and the Concessionaire acknowledge that a disagreement exists between them as to the interpretation of Concession Limits as defined in Article 1(1) herein. Both parties reserve their respective contentions in this matter and hereby agree to pursue declaratory judgment litigation to resolve the question with all reasonable speed.... For the purposes of Article II, an agreement between the parties to cease litigation or a determination by the Alaska Supreme Court will be considered final. .The meeting was called by Strandberg because a dispute over the validity of the 1961 amendment had arisen after the State attempted to open to public bid concession rights to a new terminal extension then under construction. Because litigation might delay construction of the terminal addition, the State agreed to resolve the dispute by negotiation. . These include the following remarks from the transcript of the minute order: (1) If they had not drawn up this written agreement . would there have been any agreement that could have been enforced? Or did Strandberg by saying, "Okay, you lawyers take it and work out the details," was he in effect saying, well, we have an agreement in principle, but we're not going to have a complete agreement until these details are worked out? (2) I also am not persuaded, even by a preponderance of evidence, that any binding agreement was reached at the May 29, 1968 negotiating session. Speaking to the latter point first: Mr. Strandberg testified that he and Mr. Chambers reached an agreement and they left it up to the lawyers to fill in the details. Mr. Strandberg further testified that he expected that there might be a need for further negotiations with respect to some of those details. That is an agreement in principle, it is not a final, binding agreement. (3)Finally AMFAC has not persuaded me as to its contention that the agreement was made May 29, 1968. The agreement was signed subsequently.... I have very great doubt that there was any agreement that was reached in what was intended to be a final form on May 29, 1968. In any event the proof is not sufficient to meet the clear and convincing requirement. (Emphasis added.) . The judge stated that he relied to a lesser extent on: (1) the agreement itself; (2) evidence that Northwest never objected when the State communicated its intent to abide by Exhibit C; (3) a letter from the State to the Post Office in 1967 refusing to lease additional land in the terminal reserve area; (4) testimony from Harry Wakefield, Director of the Division of Aviation in 1968, that it would have been "foolhardy" at the time the supplemental agreement was executed to believe that the airport would not expand beyond the boundaries of Exhibit C during the contract term; and (5) testimony from Ed Granger, Planning Engineer with the Division of Aviation in 1968, that Exhibit C was used to define the concession area because the term "airport terminal complex" would have been too ambiguous, since it meant different things to different people. . The Memorandum stated in part: I am afraid the area outlined by the Division of Aviation as the section to be included within the lease will not satisfy Northwest Airlines. It will be an excellent settlement for the State if Northwest are [sic] willing to agree. However, 1 do feel that you should have and expect to have some latitude for compromise. I believe we should discuss this matter and arrive at a compromise position prior to your negotiations with Northwest Airlines' attorneys. .AMFAC argues that the trial court committed reversible error by admitting exhibits pertaining to the leases. The leasing information was irrelevant, AMFAC contends, because it could have had no bearing on the parties' mutual intent. We believe the evidence was relevant, and hence admissible, because it bears on the question of the intent of the State's representatives who participated in the negotiations preceding the execution of Supplemental Agreement No. 3. AMFAC sought to explain the inconsistency between Exhibit C and the rights allegedly agreed to by arguing that both parties assumed that all terminal expansions would occur within the area described in Exhibit C. In our view, the trial court could properly consider the leasing evidence in determining whether both parties were in fact operating on that assumption. See Alaska R.Evid. 401.

10434006

James ADKINSON and Bethany R. Adkinson, Appellants, v. ROSSI ARMS COMPANY and Mountain View Sports Center, Inc., Appellees

Adkinson v. Rossi Arms Co.

1983-02-25

No. 6212

1236

1241

659 P.2d 1236

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

James ADKINSON and Bethany R. Adkinson, Appellants, v. ROSSI ARMS COMPANY and Mountain View Sports Center, Inc., Appellees.

James ADKINSON and Bethany R. Adkinson, Appellants, v. ROSSI ARMS COMPANY and Mountain View Sports Center, Inc., Appellees. No. 6212. Supreme Court of Alaska. Feb. 25, 1983. A. Lee Petersen, A. Lee Petersen, Inc., Anchorage, for appellants. Robert L. Eastaugh, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage for Rossi Arms Company, appellee. Nicholas C. Newman, Lee, Smart, Cook & Martin, P.S., Inc., for Mountain View Sports Center, Inc., appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

2824

18046

OPINION RABINOWITZ, Justice. This appeal arises out of a wrongful death action instituted by Walter E. Butts, Jr., against James Adkinson for the fatal shooting of Butts' son, Steven Butts. Ad-kinson had been previously tried and convicted in superior court of manslaughter for the fatal shooting of Steven Butts. Adkin-son's manslaughter conviction was subsequently upheld on appeal by this court. Adkinson v. State, 611 P.2d 528 (Alaska 1980), cert. denied, Adkinson v. Alaska, 449 U.S. 876, 101 S.Ct. 219, 66 L.Ed.2d 97 (1980). Of significance to the resolution of this appeal is the following portion of our opinion in Adkinson, 611 P.2d at 530-31: At trial, prosecution and defense witnesses offered differing accounts of how the shooting occurred. Butts' two companions testified that Adkinson was upset as he approached them, and that although they were conciliatory, Adkinson was belligerent, waving his shotgun around, and eventually, when he was within inches of Steven Butts, pointing the gun directly at him moments before it discharged. Ad-kinson took the stand in his own defense and denied pointing his gun at Butts. Both Adkinson and his wife testified that the weapon was pointed to the side of Butts. Adkinson testified that Butts was agitated, "building himself up into a frenzy," and attempted to grab the weapon from Adkinson's hands, thereby pulling it towards himself when it discharged. Sometime after the wrongful death action had been commenced, Adkinson and his wife filed a third-party complaint against Rossi Arms Company (Rossi) and Mountain View Sports Center, Inc. (Mountain View). In this third-party complaint the Adkinsons alleged in part that Rossi had manufactured and Mountain View had sold a defective shotgun, that the shooting of Steven Butts was due to a defect in the shotgun which caused it to discharge accidentally, and that the third party defendants were therefore liable for the death of Steven Butts. The Adkinsons additionally asserted that James Adkinson's manslaughter conviction, his prison sentence, and the wrongful death claim were all the direct result of Rossi and Mountain View's negligence and breach of warranty in the manufacture and sale of the shotgun. In addition to a claim for reimbursement and indemnification for any judgment recovered against them in the wrongful death action, the Adkinsons sought to recover compensatory and punitive damages for injuries directly suffered. Rossi, joined by Mountain View, moved for summary judgment. The third-party defendants claimed that Adkinson was precluded under the doctrine of collateral es-toppel from denying that he had proximately caused Steven Butts' death, that Adkin-son was not entitled to contribution since Adkinson had intentionally assaulted Steven Butts and thereby caused Butts' death, and that Adkinson was not entitled to recover for personal damages which resulted from his own criminal acts. In opposition to the motion, the Adkinsons took the position that summary judgment was inappropriate since there remained genuine issues of fact regarding the existence of a defect in the shotgun and the extent to which this defect may have caused Steven Butts' death and thereby contributed to the losses suffered by Adkinson. The superior court denied that portion of Rossi and Mountain View's motion for summary judgment which sought to dismiss the Adkinson's claim for contribution towards any recovery regarding the wrongful death claim. The Adkinsons' indemnity claim was dismissed since they had not opposed summary judgment as to this facet of the case. In addition, the superior court granted partial summary judgment to Rossi and Mountain View with respect to the Adkinsons' direct claim for personal damages. In this regard the superior court's order reads: Insofar as third-party defendants' Motion for Summary Judgment applies to third-party plaintiff's direct claim for personal damages from third-party defendant, such Motion for Summary Judgment is GRANTED. The alleged damages to third-party plaintiff were brought about by his own acts. The alleged defect in the weapon made and sold by third-party defendants could not be construed as the proximate cause of third-party plaintiff's damages. The superior court subsequently denied the Adkinsons' motion for reconsideration and entered judgment for Rossi and Mountain View on the Adkinsons' direct, claim for personal damages as well as their claim for indemnification. The superior court directed the entry of a final judgment as to these claims, finding pursuant to Civil Rule 54(b) there was no just reason for delay of entry of a final judgment. The Adkinsons appeal only from the entry of summary judgment dismissing their direct claims for damages. We affirm. Our analysis of the issues presented in this appeal leads us to the conclusion that we need to discuss only two of the grounds which have been advanced by Rossi and Mountain View in support of the superior court's decision. More particularly, we think appellees' arguments that they owed no duty as either a manufacturer or distributor of firearms to protect the Adkinsons from the consequences of James Adkinson's own intentional criminal conduct, and that public policy prohibits the shifting of the consequences of James Adkinson's criminal conduct, are dispositive of this appeal. In D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), we had occasion to discuss factors which this court will consider in determining whether an actionable duty of care exists under particular circumstances. In our discussion we approved the criteria and analysis employed by the court in Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (CalApp.1976). There the court considered the following factors in deciding whether an actionable duty of care existed in a particular case: "[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." Application of these criteria, as well as considerations of public policy, lead us to conclude that neither Rossi nor Mountain View owed a legal duty to the Adkin-sons to protect them from James Adkin-son's intentional criminal conduct. Our decision is based on the following considerations. First, the Adkinsohs' asserted personal losses were not foreseeable. While Rossi and Mountain View could have anticipated that a defect in the shotgun would have resulted in someone being shot, it is not readily foreseeable that the shooter will unlawfully and intentionally point the firearm and be convicted of manslaughter because of such acts on his part. Second, lacking in any significant degree is a "closeness of . connection" between the conduct of Rossi or Mountain View and the personal damages allegedly sustained by the Adkinsons. Third, James Adkinson was convicted of a serious criminal offense, manslaughter, and received a ten year prison sentence. Any "moral'blame" attaching to the conduct of Rossi or Mountain View is of a significantly lesser degree than that which society assigns to James Adkin-son's commission of a homicide. Fourth, the policy of preventing future harm is not advanced by imposing a duty on either Ros-si or Mountain View to protect the Adkin-sons from criminal conduct on the part of James Adkinson. Allowance of a civil recovery in the particular factual circum stances of this record would have the effect of minimizing the criminal significance of James Adkinson's conduct and would be contrary to public policy. Fifth, analysis and application of "the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach" militates against a holding that the Adkin-sons have a claim for personal damages against either Rossi as manufacturer of the firearm or Mountain View as distributor. Imposition of such a duty would in our view have detrimental consequences for society as a whole. Here, considerations of public policy mandate that the Adkinsons' arguments for imposition of a duty be rejected. Finding that the appellees owed a duty to the Adkinsons would tend to denigrate James Adkinson's personal responsibility for his criminal conduct and would have the effect of compensating James Adkinson for the consequences of an intentional homicide, ultimately transfering the costs involved to the public. Furthermore, allowing a criminal defendant, who has been convicted of an intentional killing, to impose liability on others for the consequences of his own anti-social conduct runs counter to' basic values underlying our criminal justice system. The goals of general deterrence as well as individual deterrence would undoubtedly be undercut. Obviously, other sanctions and goals of the criminal justice system are implicated. In our view, allowance of the action sought to be maintained by the Adkinsons would erode the societal norms referred to in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). The jury which heard James Adkin-son's criminal case concluded beyond a reasonable doubt that Adkinson was guilty of manslaughter on the basis of his own intentional conduct. The responsibility for any resultant "personal losses" rest solely with the Adkinsons. Thus, we conclude that under the criteria of D.S. W. and in light of strong public policy considerations, one convicted of an intentional killing does not have a claim for relief against either the manufacturer of the firearm used in the killing, or the distributor of the firearm, for direct personal losses. Affirmed. CONNOR, J., not participating. . We further noted that: The Adkinsons also testified that Adkinson was very careful in the use of weapons, would never point a gun at another person, and had never done so. On rebuttal, the prosecution offered the testimony of two witnesses who described two separate incidents when Adkinson pointed a gun at suspected trespassers on his land. 611 P.2d at 531. . An additional third-party defendant, Garcia Corporation, was dismissed from the case and is no longer a party. . The Adkinsons alleged that they had sustained damages which included emotional pain and suffering, humiliation and embarrassment, loss of enjoyment of life, loss of time and legal costs incurred in defending the civil and criminal actions, and loss of earnings due to James Adkinson's incarceration. . The Adkinsons conceded that they were not entitled to full indemnification from Rossi and Mountain View in light of this court's affirmance of James Adkinson's conviction for manslaughter. They continue to assert, however, that they are entitled to contribution and/or partial recovery for any wrongful death judgment and for their own direct losses. . Neither party has appealed from these rulings, thus they are not at issue in this appeal. The superior court order of May 18, 1981, provided, in part, as follows: Insofar as third-party defendants' Motion for Summary Judgment applies to third-party plaintiff Adkinsons' claim for contribution, such motion is DENIED. AS 09.16.010(c) does not apply in this case. That statute requires specific intent on the part of the tort-feasor to inflict the injury. Although third-party plaintiff Adkinson has been convicted of manslaughter, his alleged specific intent to cause injury was not necessarily decided by the criminal trial jury under the instructions given it by the court. Further, third-party plaintiff Adkinsons did not oppose third-party defendants' Motion for Summary Judgment on the issue of indemnification. Therefore, said motion on this issue is GRANTED. .Our review of the record has persuaded us that the superior court did not abuse its discretion under Alaska R.Civ.P. 54(b) in finding no just reason for delay and in directing the entry of final judgment. Johnson v. State, 577 P.2d 706, 710-11 (Alaska 1978). . Peter W. v. San Francisco Unified School Dist., 60 Cal.App.3d 854, 131 Cal.Rptr. 854, 859-60 (Cal.App.1976), quoting Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, 564 (Cal.1968). . In the superior court, the Adkinsons conceded that the jury in James Adkinson's criminal trial necessarily found that he had intentionally pointed the shotgun towards Butts. . The law of negligence protects only from foreseeable risks of harm. State v. Guinn, 555 P.2d 530, 536 (Alaska 1976). . In this regard, counsel for Rossi cogently argued, in part, that: [Tjhere is no certainty the Adkinsons suffered injury legally caused by a defect. The prosecution and death claim were based on James Adkinson's own wrongdoing. The Ad-kinsons' alleged personal losses directly arise out of a variety of independent agencies not controlled by Rossi: James Adkinson's criminal conduct, the trooper's investigation, the Department of Law's prosecution, the grand jury's indictment, the trial jury's verdict, the trial court's rulings and sentence, the decision of this court on appeal, denial of certio-rari by the United States Supreme Court, denial of writ of habeas corpus by the United States District Court, and the decision of the personal representative of Steven Butts' estate to sue James Adkinson. The Adkinsons' personal losses are "necessarily incapable of assessment." D.S.W., 628 P.2d at 556. There is no connection between an alleged defect and the Adkinsons' alleged personal losses. Any conceivable connection must be considered remote, and obliterated by the independent, intervening forces of the criminal process. Any personal losses of the Adkin-sons are so remote from Rossi's alleged responsibility that the legal cause of those losses is "an imponderable which is beyond the ability of courts to deal with in a reasoned way." D.S.W., 628 P.2d at 556. .The jury found James Adkinson guilty of manslaughter (AS 11.15.040), and further returned a verdict of not guilty of negligent homicide (AS 11.15.080). . The public policy aspects of this appeal will be addressed in more detail subsequently. . In Wilson v. City of Kotzebue, 627 P.2d 623, 631 (Alaska 1981), we held that a plaintiffs intentional conduct which results in injury to himself will bar any recovery against a merely negligent defendant whose conduct also contributed to the plaintiff's injury. . Compare Cole v. Taylor, 301 N.W.2d 766 (Iowa 1981) (plaintiff prohibited from recovering in tort from her psychiatrist on claim that he negligently failed to prevent her from committing murder); Tovar v. Paxton Community Memorial Hospital, 29 Ill.App.3d 218, 330 N.E.2d 247 (Ill.App.1975) (public policy prevented physician who was not licensed to practice in Illinois from suing employer-hospital for misrepresentation, when alleged misrepresentation was that his credentials were satisfactory to hospital). See generally Snug Harbor Packing Co. v. Schmidt, 394 P.2d 397, 399 (Alaska 1964) (stating general rule that court will refuse to aid party whose claim is based upon his own illegal act); Farragut Baggage & Transfer Co. v. Shadron Realty Inc., 18 Ariz.App. 197, 501 P.2d 38 (Ariz.App.1972) (plaintiff precluded from recovery on cause of action resting in part on admission that he performed an illegal act). .The Adkinsons rely heavily on Transamerica Title Ins. Co. v. Ramsey, 507 P.2d 492 (Alaska 1973), to support their personal damage claim. In Ramsey, the plaintiff brought an action against a title insurance company alleging that the company had negligently failed to inform the plaintiff that her power of attorney had been revoked, and that she was no longer authorized to sell the property owned jointly by the plaintiff and her ex-husband. We held that the plaintiff could recover damages for a lawsuit which arose as a result of the invalid sale of the property since the sale might not have occurred if the plaintiff had been advised of the revocation. Id. at 497. The Adkinsons claim their case is analogous since they seek to recover for the costs and expenses of the criminal action and conviction against James Adkinson, an action which allegedly would not have occurred but for the defective shotgun. Since the plaintiff in Ramsey was allowed to recover even though her own acts (sale of the property) led to her being sued, the Adkinsons claim that they should be allowed to recover despite the fact that the criminal action was the result of James Adkinson's conduct. The Adkinsons' reliance on Ramsey is not persuasive. The distinguishing factor is that the plaintiff in Ramsey was an innocent party. On the other hand, it was James Adkinson's own criminal conduct which led to the losses suffered by the Adkinsons. Ramsey simply is not on point, and the Adkinsons have failed to cite any authority for the proposition that a plaintiff may recover for personal losses stemming from the plaintiffs own criminal conduct. . Our holding makes it unnecessary to address any of the other issues raised in this appeal. Implicit in our resolution of this case is the conclusion that there were no genuine issues of material fact which would have precluded the superior court from entering summary judgment.

10429791

Jerry Wayne DEAL, Appellant, v. STATE of Alaska, Appellee

Deal v. State

1983-02-25

No. 6776

625

630

659 P.2d 625

659

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

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

Jerry Wayne DEAL, Appellant, v. STATE of Alaska, Appellee.

Jerry Wayne DEAL, Appellant, v. STATE of Alaska, Appellee. No. 6776. Court of Appeals of Alaska. Feb. 25, 1983. William F. Morse, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Thomas M. Wardell, Dist. Atty., Kenai, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2947

18148

OPINION PER CURIAM. Jerry Wayne Deal was convicted of burglary in a dwelling, former AS 11.20.080, and burglary not in a dwelling, former AS 11.20.100. Former AS 11.20.080 provided: A person who breaks and enters a dwelling house with intent to commit a crime in it, or having entered with that intent, breaks a dwelling house or is armed with a dangerous weapon in it, or assaults a person lawfully in it is guilty of burglary, and upon conviction is punishable by imprisonment in the penitentiary for not less than one year nor more than ten years. However, if the burglary is committed at nighttime, it is punishable by imprisonment for not less than one year nor more than 15 years. If a human being is within the dwelling at the time of the burglary during the nighttime or daytime, it is punishable by imprisonment for not less than one year nor more than 20 years. Former AS 11.20.100 provided: A person who breaks and enters a building within the curtilage of a dwelling house but not forming a part of it, or who breaks and enters [any] other structure . in which property is kept, with intent to steal or to commit a felony in it, is guilty of burglary, and upon conviction is punishable by imprisonment in the penitentiary for not less than two nor more than five years. The indictment charging Deal with burglary in a dwelling specified that the offense occurred in the nighttime while the dwelling was occupied. He was therefore subject to a twenty-year sentence. The burglary not in a dwelling was predicated upon a separate charge that Deal broke into a Ford Bronco and stole property from inside it. The trial judge sentenced Deal to concurrent sentences of fifteen years for the burglary in a dwelling and five years for the burglary not in a dwelling. He suspended all of the time, however, and placed Deal on probation on certain conditions, including the requirement that Deal complete the Ak-eela House program and obtain a high school equivalent degree. Akeela House is a private residential therapeutic community- Deal spent eighteen months at Akeela House and graduated from the program. He also obtained his G.E.D. After leaving Akeela House, Deal experienced difficulty in finding accomodations. He violated a number of the conditions of his probation. He admitted failing to seek employment and failing to keep appointments with his probation officer. In addition, he was charged with a probation violation for assisting two other men in burning a motor vehicle to obtain the insurance proceeds. This action also resulted in a separate charge of criminal mischief in the second degree, AS 11.46.482 (a class C felony). Deal was convicted of this offense. We affirmed his conviction in Deal v. State, 657 P.2d 404 (Alaska App., 1983). Deal received a two-year presumptive sentence concurrent with the sentences under consideration here. Based upon his admissions and the criminal conviction, the trial court revoked Deal's probation and sentenced him to serve the two sentences previously imposed. Deal appeals contending that a fifteen-year sentence is excessive. We agree and reverse, directing that the total sentence on remand not exceed ten years to serve. Deal was born October 29, 1960, and is currently twenty-two years old. His history up until his original sentencing for the two burglaries was summarized by the probation officer assigned to prepare the pre-sentence report as follows: A review of the numerous juvenile institutional files reveal the following information: The defendant [Jerry Wayne Deal] was originally adjudicated delinquent on February 22, 1977, on a charge of Larceny In A Building and Buying and Receiving Stolen Property. He was at this time living with his father and brothers in the Place Motel in Kenai. He reported that his friends tempted him to steal from rooms in the motel and he obtained a master key and used this to get into the rooms. This activity continued for approximately three weeks before he was apprehended by the manager of the motel. Following adjudication, he resided with his older brother and his wife in Soldotna. The defendant was unable to get along with his sister-in-law and in fact got into [a] physical altercation with her and was placed at McLaughlin Youth Center. Because of harassment and scape-goating in detention, he was placed at the Kenai Care Center but was removed after approximately one month because of breaking into the counselor's office. He was then placed at Cookson Hills Christian School in Homer where he stayed three days. During that time, he ran [away] twice and broke into the Foster home while the Foster family was gone. He was then placed back at McLaughlin Youth Center in detention and remained there from May until placement could be successfully accomplished at Brown's Schools in Austin, Texas. He remained at Brown Schools from October of 1977 until March of 1978 when he was returned to the State of Alaska as una-menable to placement at Brown Schools. He was discharged because of unresponsiveness to treatment, runaway, and increasing assaultive behavior. He was at that point returned to M.Y.C. and reclassified for the Closed Treatment Unit. The defendant was in the Closed Treatment Unit at McLaughlin from May until September of 1978; he was then transferred into the Cottage Program. Jerry seemed to make good progress in the Cottage Program in spite of a few problems with his stealing and drug involvement. He was eventually released from McLaughlin Youth Center and Juvenile Probation in July of 1979. He was accepted at the Skill Center in the summer of 1979 but spent only a brief time there before he became involved in thefts and left the school returning to the home of his parents in Soldotna. Within a matter of months he had reinvolved himself in criminal activities only this time he was 18 years of age and was charged with these incidents as an adult. The record reflects that Deal was charged with four counts of burglary in a dwelling, all of the events occurring on October 22, 1979, and the one count of burglary not in a dwelling involving the Ford Bronco which allegedly occurred on the same date. Three of the burglary in a dwelling counts were dismissed; Deal entered pleas on the remaining charges. The probation officer summarized her conclusions as follows: It appears the Division of Corrections has in the past attempted to afford Mr. Deal every opportunity to involve himself in training, medical help and therapy to provide him with the skills necessary to function as a law-abiding citizen. He simply has not had the motivation to accept help. There is no question but what he has the ability to function successfully and to maintain himself within society's acceptable limits. He seems to consciously and purposely act in an illegal manner as a quest for excitement and a diversion for what is viewed as normal behavior. It appears that Mr. Deal most successfully responds to a punishment and/or consequences type of conditioning and to release the defendant on Probation at the present time simply does not appear justified. Mr. Deal, by his own admission, burglarized numerous houses and automobiles with little thought to the consequences of his actions but only to the excitement of the moment. The residence with which he is charged with burglary in this incident is one in which he entered in the night time and when people were sleep ing which could have resulted in violent and tragic consequences for the defendant and the victims. Also, he did at one point have on his person a .38 caliber revolver although he indicated to this Officer that, he certainly had no intention of using it. In view of these facts and of Mr. Deal's prior history, incarceration for the protection of society and hopefully for the rehabilitation of the offender appears most appropriate. Deal was sentenced on February 22,1980, and immediately took up residence at Akee-la House where he remained until his release on July 29,1981. During the summer of 1981 Deal refrained from committing criminal acts. He did not maintain contact with his probation officer and did not actively seek employment. On September 26, 1981, Deal and two others entered into a conspiracy to burn a 1979 Chrysler New Yorker valued at $7700. The Chrysler belonged to one of the trio and their intent was to destroy the vehicle and claim the insurance proceeds. They discussed their conspiracy in the presence of a taxicab driver who reported the conversation to the police leading to their arrest and conviction. At the initial sentencing proceeding, Judge Hanson concluded that Deal was a worst offender. He based this conclusion on Deal's virtually continuous involvement in theft-related offenses during his brief vacations from juvenile detention and Deal's inability to respond to any of the varied rehabilitation programs offered him by the Division of Corrections. Judge Hanson imposed a near maximum fifteen-year sentence on Deal for burglary in an occupied dwelling at night to reflect this worst offender characterization, but concluded that the community should not be required to support Deal for fifteen years as long as there was the possibility that the Akeela House program could turn him around. Expressing reservations about Deal's ability to be rehabilitated, the court nevertheless allowed him the opportunity to participate in the Akeela House program. The record reflects that Deal successfully completed that program. Nevertheless within three months of graduation, Deal committed a class C felony. Under these circumstances Judge Hanson was justified in revoking Deal's probation. See Kanipe v. State, 620 P.2d 678 (Alaska 1980). Nevertheless, as the supreme court noted in Kanipe: "When a sentence is imposed following probation revocation, the sentencing judge must consider the same criteria as those considered initially upon conviction of the underlying offense." Id. at 679 (citations omitted). Particularly relevant in this regard is the supreme court's decision in Whittlesey v. State, 626 P.2d 1066 (Alaska 1980), where the court said: In the time since the crime, a new criminal code has substantially revised the length of permissible sentences for many crimes . Legislative guidelines setting standards concerning mitigating and aggravating factors have been expressed . The State and Whittlesey, in their briefs, take opposite positions with respect to the significance of the sentencing provisions of the new criminal code for cases in which they do not control. The comprehensive and explicit standards of the new criminal code are the most recent expressions of legislative policy in the highly subjective realm of sentencing. They are the result of long and careful deliberation by that body. We agree with Whittlesey that the sen.tencing provisions of the new criminal code are useful and relevant in the determination of an appropriate sentence under the present circumstances . Id. at 1068 (footnotes omitted). Deal's most serious offense under the new code would be burglary in the first degree, AS 11.46.300 (a class B felony). The maximum sentence for a class B felony is ten years incarceration. AS 12.55.125(d). The presumptive terms are respectively four years for a second offender and six years for a third offender. Deal's extensive juvenile record and recurrent failures on probation coupled with his recent class C felony conviction warrant the imposition of a sentence in excess of the presumptive sentence for a second or third felony offender. See Austin v. State, 627 P.2d 657 (Alaska App.1981) (in the absence of extraordinary circumstances a first felony offender should not receive a sentence in excess of the presumptive term for a second felony offender; an extensive juvenile record may support a finding of exceptional circumstances). However, it could not result in a sentence in excess of ten years under the new code. We believe this ten-year limitation should only be exceeded in the most unusual of cases. We note that the revised ABA Standards as well as past decisions of Alaska courts recommend a maximum ten-year sentence in the absence of extraordinary circumstances. Hansen v. State, 657 P.2d 862 (Alaska App.1983); Viveros v. State, 633 P.2d 289, 291 (Alaska App.1981); ABA Standards for Criminal Justice § 18-2.1(e) (2d ed. 1980). Cf. Donlun v. State, 527 P.2d 472, 475 (Alaska 1974). In Sundberg v. State, 636 P.2d 619 (Alaska App.1981) (Sundberg I), we questioned whether a defendant should ever receive a sentence under the old code which would be greater than one which the same conduct would permit under the revised code. After remand we permitted such a sentence because of Sundberg's substantial record of •adult felony convictions. Sundberg v. State, 652 P.2d 113 (Alaska App.1982) {Sundberg II). With the exception of Deal's current class C felony conviction, Deal's record, while extensive, was entirely accumulated as a juvenile or shortly after he attained his majority. Finally, we recognize that the state initially charged Deal with four separate burglaries to which he confessed. The state might not have willingly dismissed the other counts if it had anticipated a ten-year maximum sentence. Judge Hansen could have initially given Deal consecutive rather than concurrent sentences for his burglaries and Judge Johnstone might have given Deal a consecutive sentence for the criminal mischief conviction if Deal had not been facing a fifteen-year potential sentence on a probation revocation at that time. These considerations do not warrant approval of the sentence imposed. The ten-year sentence we permit for Deal is equal to the maximum sentence he could receive under current law for the most serious offense for which he was convicted, first-degree burglary. Before that term could be exceeded by imposition of consecutive sentences, the court imposing a consecutive sentence would have to find that Deal's imprisonment for the entire period was necessary to protect the public. Mutschler v. State, 560 P.2d 377, 380 (Alaska 1977). Cf. Lacquement v. State, 644 P.2d 856, 862 (Alaska App.1982) (when aggregate of consecutive sentences exceeds applicable presumptive term for most serious offense, even though maximum sentence is not exceeded, it is necessary to determine that such a sentence is needed to protect the public from serious danger). Under the totality of the circumstances, a finding that Deal should be imprisoned for more than ten years to protect the public would not be sustainable. We base this conclusion on Deal's youth, the absence of violence in his offenses, and the fact that he has never served more than two years in custody for any prior conviction. The judgment of the superior court is . REVERSED. The sentence is VACATED and this case REMANDED for resentenc-ing. On remand the sentence imposed shall not exceed ten years to serve.

6988349

Xeuy SIKEO, Appellant, v. STATE of Alaska, Appellee

Sikeo v. State

2011-07-01

No. A-10558

906

912

258 P.3d 906

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Xeuy SIKEO, Appellant, v. STATE of Alaska, Appellee.

Xeuy SIKEO, Appellant, v. STATE of Alaska, Appellee. No. A-10558. Court of Appeals of Alaska. July 1, 2011. Doug Miller, Assistant Public Advocate (opening brief), Robert Lee Griffin, Assistant Public Advocate (reply brief), and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

3702

23258

OPINION MANNHEIMER, Judge. Xeuy Sikeo had sexual intercourse with the 11-year-old daughter of his girlfriend. The girl became pregnant and later gave birth to a baby (which she relinquished for adoption). DNA testing confirmed that Sikeo was the father of this baby. Based on this conduct, Sikeo was convicted of first-degree sexual abuse of a minor. Because Sikeo had two prior convictions for attempted second-degree sexual abuse of a minor, his sentencing was governed by AS 12.55.125(0)(1)(F). This statute prescribes a 99-year presumptive term of imprisonment for defendants convicted of first-degree sexual abuse of a minor if the defendant has two or more prior convictions for any of the sexual felonies listed in AS 12.55.185(16). Sikeo in fact received this presumptive 99-year term. In this appeal, Sikeo contends that the 99-year presumptive term prescribed by AS 12.55.125(0(1)(F) is so disproportionate to his offense that it constitutes "cruel and unusual punishment" under the Eighth Amendment to the United States Constitution and under Article I, Section 12 of the Alaska Constitution. Sikeo's contention rests on two underlying assertions about Alaska sentencing law. Sikeo's first underlying assertion concerns the nature of the 99-year term of imprisonment specified for defendants who, like Sik-eo, are convicted of first-degree sexual abuse of a minor and have at least two prior convie-tions for sexual felonies. Sikeo asserts that this term of imprisonment is a "mandatory" 99-year term. As we explain in this opinion, this characterization is incorrect. The 99-year term prescribed by AS 12.55.125(@)(1)(F) is a "presumptive" term of imprisonment, not a "mandatory" term of imprisonment. Sikeo's second underlying assertion is that the proportionality of this presumptive term of imprisonment should be assessed by comparing it to the penalty range for a first felony offender convicted of murder. For the reasons explained here, we disagree with this assertion as well. We conclude that the proper point of comparison is the 99-year mandatory term of imprisonment specified in AS 12.55.125(a)(1) for all defendants who are convicted of a third unclassified or class A felony. Sikeo's argument that he faced a mandatory 99-year sentence Sikeo asserts that, under the terms of AS 12.55.125(i)(1)(F), he faced a "mandatory" 99-year sentence. This is incorrect. The 99-year term of imprisonment specified in AS is not a mandatory minimum term of imprisonment, but rather a presumptive term of imprisonment. (We discussed this distinction Soundara v. State, 107 P.3d 290, 300 (Alaska App.2005), and in Clark v. State, 8 P.3d 1149, 1150-51 (Alaska App.2000).) Here are the relevant provisions of AS 12.55.125(i): A defendant convicted of . sexual abuse of a minor in the first degree . may be sentenced to a definite term of imprisonment of not more than 99 years and shall be sentenced to a definite term within the following presumptive ranges, subject to adjustment as provided in AS 12.55.155-12.55.175: (E) if the offense is a third felony conviction and the defendant is not subject to sentencing under (F) of this paragraph or (I) of this section, 40 to 60 years; [and] (F) if the offense is a third felony conviction, the defendant is not subject to sentencing under (1) of this section, and the defendant has two prior convictions for sexual felonies, 99 years[.] Under this statute, when a "third felony offender" (that is, a defendant with at least two prior felony convictions-see AS 12.55.185(17)) is convicted of first-degree sexual abuse of a minor, the defendant faces a presumptive sentencing range of 40 to 60 years if their prior felony convictions do not include two prior sexual felonies (as defined in AS 12.55.185(16)). If, on the other hand, the defendant's prior felony convictions include two or more sexual felonies, then the presumptive sentencing range increases to a presumptive term of 99 years. But in either case, under the express language of the opening paragraph of the statute, the defendant's prescribed sentence is "subject to adjustment as provided in AS 12.55.155-12.55.175". The sentencing statute's reference to AS 12.55.155 means that the 99-year presumptive term can be adjusted by the sentencing judge, pursuant to AS 12.55.155(a), for any of the statutory mitigating factors listed in AS 12.55.155(d). If the defendant proves one or more of these mitigating factors, the sentencing judge has the authority to reduce the 99-year term of imprisonment by up to fifty percent. See AS 12.55.155(a)(2): [If a defendant . is subject to sentencing under AS 12.55.125(c), (d), (e), or (i) and . the low end of the presumptive range is more than four years, the court may impose a sentence below the presumptive range as long as the active term of imprisonment is not less than 50 percent of the low end of the presumptive range for factors in mitigation.... The sentencing statute's reference to AS 12.55.165-175 means that if the statewide three-judge panel concludes that manifest injustice would result from failure to consider a non-statutory mitigator when formulating the defendant's sentence, the panel has the authority to reduce the defendant's sentence by up to fifty percent of the specified 99-year presumptive term based on this non-statutory mitigator. Moreover, if the three-judge panel concludes that the prescribed term of imprisonment (even after adjustment for mit-igators) is manifestly unjust, the panel can sentence the defendant to any term of imprisonment within the O-to 99-year range specified in AS 12.55.125(0(1). See AS 12.55.175(c) We acknowledge that when defendants like Sikeo are sentenced as repeat sexual offenders under AS 12.55.125(i)(1)(F), they are not eligible for good time credit. And because these defendants do not earn good time ered-it, they never become eligible to apply for discretionary parole unless the three-judge sentencing panel has expressly made them eligible for parole. Thus, these defendants will normally serve the entire term of imprisonment imposed on them. But because the sentencing judge is authorized to adjust the 99-year presumptive term for statutory mitigating factors, and because the three-judge panel is authorized to adjust the presumptive term for nonstatutory mitigating factors or for manifest injustice, a defendant who is sentenced under AS 12.55.125()(1)(F) may receive a term of imprisonment that is substantially less than the 99-year presumptive term specified in the statute (and they may be granted parole eligibility by the three-judge panel). Sikeo's argument that the proportionality of the 99-year sentence prescribed by AS 12.55.125(i)(1)(F) should be assessed by comparing it to the range of sentences prescribed for murder Sikeo argues that if he had committed first-degree murder instead of first-degree sexual abuse of a minor, he would have faced a significantly more lenient penalty range. Sikeo points out that, even though the maximum penalty for first-degree murder is the same 99-year term of imprisonment that he faced for first-degree sexual abuse of a minor, the minimum penalty for first-degree murder is only 20 years. Thus, Sikeo argues, if he had killed someone instead of sexually abusing someone, the sentencing judge would not have been required to sentence him to a mandatory term of 99 years; rather, the judge could have sentenced him to as little as 20 years to serve. This reasoning is unpersuasive for three reasons. First, as we explained in the preceding section of this opinion, the 99-year term of imprisonment prescribed by AS 12.55.125(i)(1)(F) is not a mandatory term of imprisonment, but rather a presumptive term. Second, even though the sentencing range for first-degree murder is 20 to 99 years' imprisonment, this Court has held that a typical defendant who commits a typical first-degree murder can receive the maximum sentence of 99 years' imprisonment. As we explained in Sakeagak v. State, 952 P.2d 278, 285 (Alaska App.1998): [In Riley v. State, 720 P.2d 951 (Alaska App.1986), . this court rejected a proposed 60-year benchmark sentence for first-degree murder-primarily because 99-year sentences for first-degree murder have consistently been upheld by the Alaska appellate courts. Id., 720 P.2d at 952. Riley does not establish the rule that first-degree murderers can always receive 99-year sentences, nor does Riley free sentencing judges from the obligation to base sentences on a careful consideration of the Chaney sentencing criteria. See Riley, 720 P.2d at 952; State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); AS 12.55.005. However, after Riley, a defendant who challenges a 99-year sentence for first-degree murder must show some reason to believe that his offense is mitigated or that his background is atypically favorable. In contrast, a first felony offender convicted of first-degree sexual abuse of a minor faces a presumptive range of 20 to 30 years, or a presumptive range of 25 to 85 years, depending on the circumstances of the offense. See AS 12,55.125(i)(1)(A)-(B). This brings us to the main underlying flaw in Sikeo's position-our third reason for rejecting his argument. Sikeo asserts that when we assess the proportionality of his sentence-that is, the proportionality of the sentence prescribed for a third sexual felony offender convicted of first-degree sexual abuse of a minor-we should compare it to the sentence prescribed for a first felony offender convicted of murder. This is a flawed comparison. The legislature may constitutionally pre-seribe a more severe punishment or range of punishment for repeat felony offenders. This being so, it is illogical to compare Sik-eo's prescribed punishment for sexual abuse of a minor, which is based in part on his recidivism, to the punishment prescribed for other defendants who may have committed more serious crimes, but who are not repeat felony offenders. Rather, we should be comparing Sikeo's sentence to the sentence pre-seribed for third felony offenders convicted of murder and other serious felonies. It is true that the statute governing the sentence for murder in the first degree-AS 12.55.125(a)-does not have graduated penalty ranges for first, second, and third felony offenders. But there is another statute, AS 12.55.125(a)(1), which provides a substantially increased penalty for all defendants who commit either an unclassified felony or a class A felony if they have at least two prior convictions for a "most serious felony"-a term that encompasses all unclassified felonies, all class A felonies, first-degree arson, and first-degree promoting prostitution; see AS 12.55.185(10). Under this repeat offender statute, a defendant who is convicted of a third unclassified or class A felony "shall be sentenced to a definite term of imprisonment of 99 years". AS 12.55.125(a)(1). The statute further declares that this 99-year term of imprisonment may not be suspended, nor may the defendant's term of imprisonment otherwise be reduced, except that the defendant is allowed to apply onee for a modification or reduction of their sentence under the Alaska Criminal Rules after they serve one-half (4.e., 49 % years) of their term of imprisonment. See AS 12.55.125(j). Defendants who are sentenced for a third unclassified or class A felony under AS 12.55.125(a)(1) are not eligible for discretionary parole, nor are they eligible for good time credit. In other words, they will remain in prison for the rest of their lives unless, after serving a minimum of 49% years, they obtain a reduction of their sentence pursuant to AS 12.55.125(). AS 12.55.125(a)(1) is merely the most recent incarnation of the "habitual offender" sentencing statutes that have been part of Alaska law since territorial days. Before our current criminal code took effect, former AS 12.55.050 was the statute that prescribed increased sentences for repeat felony offenders. Under that statute, a second felony offender could be sentenced to up to twice the maximum term of imprisonment prescribed for their current offense; a third felony offender could be sentenced to up to four times the maximum term of imprisonment prescribed for their current offense, and a fourth felony offender could be sen tenced to life Before statehood, a similarly worded territorial statute prescribed these same increased penalties. Such increased penalties for repeat felony offenders are presumptively constitutional. As our supreme court explained in State v. Carlson, 560 P.2d 26, 28-29 (Alaska 1977): Habitual criminal statutes are founded on the general principle that persistent offenders should be subject to greater sanctions than those who have been convicted only once. These statutes serve as a warning to first time offenders and provide them with an opportunity to reform. It is only upon subsequent convictions for repeated criminal conduct that increasingly stiffer sentences are imposed. The reason the sanctions become increasingly severe is not so much that the defendant has sinned more than once as that he is deemed incorrigible when he persists in violations of the law after conviction of previous infractions. (citations and internal quotations omitted). A footnote that accompanies the above-quoted portion of Carlson notes that essentially all states impose increasingly severe penalties on repeat felony offenders-penalties that go as high as mandatory life imprisonment without parole. Carlson, 560 P.2d at 29 n. 8. The proportionality of the 99-year presumptive term of imprisonment prescribed by AS 12.55.125(@4)(1)(F) when compared to the 99-year mandatory term of imprisonment prescribed by AS 12.55.125(a)(1) Sikeo's ecrime-first-degree sexual abuse of a minor-is an unclassified felony. Thus, if Sikeo had committed this crime after being previously convicted of any two unclassified or class A felonies, he would have been subject to the 99-year mandatory term of imprisonment prescribed by AS 12.55.125(a)(1)-irrespective of the sentencing provisions of AS 12.55.125(i)(1) that Sikeo challenges in this appeal. Sikeo's sentencing is not governed by AS 12.55.125(a)(1) because his prior convictions are not for unclassified or class A felonies. Rather, both of Sikeo's prior convictions are for attempted second-degree sexual abuse of a minor-a class C felony. In his brief, Sikeo gives a passing mention to the mandatory 99-year term of imprisonment prescribed by AS 12.55.125(a)(1), but he does not suggest that this mandatory term of imprisonment is unconstitutional. Our research shows that this mandatory term is at least presumptively constitutional-because the United States Supreme Court has repeatedly rejected "cruel and unusual punishment" challenges to sentencing statutes that prescribe greatly increased sentences for re peat felony offenders. The Supreme Court has declared that these increased penalties are "proportionate" for purposes of the Eighth Amendment because state legislatures are entitled to take account of the defendant's history of criminal conduct and recidivism when assessing the defendant's danger to the public and the need to deter or forestall future crime. See Ewing v. California, 588 U.S. 11, 30-81, 128 S.Ct. 1179, 1190, 155 L.Ed.2d 108 (2008); Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 1144-45, 63 L.Ed.2d 382 (1980) (upholding a mandatory life sentence imposed on a defendant who committed felony theft-obtaining $120.75 by false pretenses-and who had two prior felony convictions). The Alaska Constitution's prohibition on cruel and unusual punishments might potentially be construed more broadly than its federal counterpart. But the Alaska Supreme Court has consistently held that our state constitution does not require that erimi-nal penalties be directly proportionate to the offense. Only punishments that are "so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice" are cruel and unusual for purposes of Article I, Section 12 of our Constitution. Thomas v. State, 566 P.2d 630, 635 (Alaska 1977); see also Green v. State, 390 P.2d 433, 435 (Alaska 1964); McNabb v. State, 860 P.2d 1294, 1298 (Alaska App.1993). For these reasons, we presume (for purposes of the present case) that the 99-year mandatory term of imprisonment prescribed by AS 12.55.125(a)(1)-that is, the 99-year term of imprisonment prescribed for a defendant who commits an unclassified or class A felony after having been convicted on at least two prior occasions of an unclassified or class A felony-is constitutional. Because of this, if Sikeo is to prevail in his "cruel and unusual punishment" claim, he must establish that his 99-year sentence for first-degree sexual abuse of a minor is arbitrarily and shockingly disproportionate when compared to the 99-year sentences imposed on other repeat felony offenders under AS 12.55.125(a)(1). | As we have explained, Sikeo's current offense (first-degree sexual abuse of a minor) is an unclassified felony, and Sikeo is a third felony offender, but he is not subject to the mandatory 99-term prescribed by AS 12.55.125(a)(1) because his two prior felony convictions are for attempted second-degree sexual abuse of a minor, which is a class C felony. In light of this distinction, we believe that the real underlying question presented in Sikeo's appeal is whether it is shockingly or arbitrarily disproportionate for the legislature to prescribe a 99-year presumptive (i.e., modifiable) term of imprisonment for defendants who commit first-degree sexual abuse of a minor and who have two prior convie-tions for sexual felonies (even if those sexual felonies are only class B or class C felonies), given the fact that the legislature has prescribed a 99-year mandatory term of imprisonment for all defendants who commit an unclassified or class A felony (such as first-degree sexual abuse of a minor) if the defendants have two prior convictions for unclassified or class A felonies of any kind. This question more or less answers itself. If the 99-year mandatory term of imprisonment prescribed by AS 12.55.125(a)(1) is constitutional, then the 99-year presumptive term of imprisonment prescribed by AS 12.55.1250(1)(F) is not shockingly or arbitrarily disproportionate. Sikeo's prior felonies may not have been unclassified or class A felonies, but they were sexual felonies- and, thus, they bear special relevance to the sentencing of a repeat sexual offender. Moreover, as we have already explained, the 99-year presumptive term of imprisonment prescribed by AS 12.55.125N0(1)(F) is more lenient than the 99-year mandatory term of imprisonment prescribed by AS 12.55.125(a)(1) for all defendants convicted of a third unclassified or class A felony. We therefore reject Sikeo's constitutional attack on the 99-year presumptive term pre-seribed by AS The judgement of the superior court is AFFIRMED. . AS 12.55.185(16) defines "sexual felony" for these purposes as: sexual assault in either the first, second, or third degree; sexual abuse of a minor in either the first or second degree; incest; unlawful exploitation of a minor; distribution or possession of child pornography; and indecent exposure in the first degree-as well as any felony-level attempt, conspiracy, or solicitation to commit any of these crimes. . See State v. Price, 740 P.2d 476, 482 (Alaska App.1987). . For the sake of accuracy, we note that AS 12.55.175(e) imposes a limitation on the three-judge panel's sentencing authority if the panel's conclusion of manifest injustice is based on the non-statutory mitigator of "exceptional potential for rehabilitation". . See AS 33.20.010(a)(3): "[A] prisoner convicted of an offense . and sentenced to a term of imprisonment that exceeds three days is entitled to a deduction of one-third of the term of imprisonment{,] rounded off to the nearest day{,] if the prisoner follows the rules of the correctional facility in which the prisoner is confined. [However, al prisoner is not eligible for a good time deduction if the prisoner has been sentenced . for a sexual felony under AS 12.55.125(i) and [the prisoner] has one or more prior sexual felony convictions as determined under AS 12.55.145(a)(4)." . See AS 33.16.090(b)(2) "A prisoner [who would otherwise be] eligible [for discretionary parole] under (a) of this section [but] who is sentenced . to a single sentence within or below a presumptive range set out in AS 12.55.125(c), (d)(2)-(4), (e)(3) and (4), or ), and [who] has not been allowed by the three-judge panel under AS 12.55.175 to be considered for discretionary parole release, may not be released on discretionary parole until the prisoner has served the term imposed, less good time earned under AS 33.20.010[.]" . See AS 33.16.090(a)(1). . See AS 33.20.010(a)(2). . Former AS 12.55.050 (originally enacted by SLA 1962, ch. 34, § 8.05, and as amended in 1964 and 1965) provided: Increased punishment for persons convicted of more than one felony. A person convicted of a felony in this state who has been previously convicted of a felony in this state or elsewhere, if the same crime elsewhere would constitute a felony under Alaska law, is punishable as follows: (1) If the person is convicted of a felony which would be punishable by imprisonment for a term less than his natural life, and has previously been convicted of one felony, then he is punishable by imprisonment for not less than the minimum nor more than twice the longest term prescribed for the [current] felony of which that person is convicted. (2) If the person has previously been convicted of two felonies, then he is punishable by imprisonment for not less than the minimum nor more than twice the longest term prescribed herein for a second conviction of felony [i.e., four times the longest term prescribed for the current underlying felony]. (3) If the person has previously been convicted of three or more felonies, then on the fourth conviction he shall be adjudged an habitual criminal, and is punishable by imprisonment for not less than 20 years nor more than the remainder of his natural life. . Before statehood, the subject of increased penalties for repeat felony offenders was addressed by § 66-21-2 of the Compiled Laws of Alaska (1949) (originally enacted by Laws 1939, ch. 53, § 2). That territorial statute contained essentially the same penalty provisions as former AS 12.55.050 (the statute whose text is quoted in the preceding footnote). . See AS 11.41.434(b). . See AS 11.41.436(b) (classifying second-degree sexual abuse of a minor as a class B felony) and AS 11.31.100(d)(4) (declaring that any at-tempi to commit a class B felony is a class C felony).

6986454

Evelynn FOSTER, Personal Representative of the Estate of Ann Davis, Appellant, v. PROFESSIONAL GUARDIAN SERVICES CORPORATION, Appellee

Foster v. Professional Guardian Services Corp.

2011-08-19

No. S-13569

102

113

258 P.3d 102

258

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Evelynn FOSTER, Personal Representative of the Estate of Ann Davis, Appellant, v. PROFESSIONAL GUARDIAN SERVICES CORPORATION, Appellee.

Evelynn FOSTER, Personal Representative of the Estate of Ann Davis, Appellant, v. PROFESSIONAL GUARDIAN SERVICES CORPORATION, Appellee. No. S-13569. Supreme Court of Alaska. Aug. 19, 2011. Mary A. Gilson and Allison E. Mendel, Mendel & Associates, Anchorage, for Appellant. No appearance by Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

6067

38085

OPINION CARPENETI, Chief Justice. I. INTRODUCTION In 2002, the superior court appointed a professional conservator for a mother suffering from dementia. Her daughter, who also served as special advocate, resisted the appointment. From 2002 onward, the daughter engaged in wide-ranging legal challenges to the conservator's handling of her mother's conservatorship. In response, the conservator incurred large legal fees, paid by the estate, in defending its actions. After the mother's death, the superior court approved the conservator's final accounting. The court recognized flaws in the conservator's management of the mother's property, including a breach of fiduciary duty. But based on a prevailing party analysis the court approved reimbursement, from the mother's property, for the full attorney's fees the conservator expended in defending itself. Because we conclude that certain of the superior court's factual findings may be inconsistent, we remand for the superior court to clarify its findings or make them consistent. And because it was error to evaluate attorney's fees under the prevailing party standard, we remand for reconsideration of attorney's fees. In all other respects we affirm the decision of the superior court. II. FACTS AND PROCEEDINGS A. Facts Ann Davis was 89 years old in August 2002 when the superior court appointed Professional Guardian Services Corporation (PGSC) as her temporary conservator and guardian. The superior court appointed PGSC permanent guardian and conservator in February 20083. Davis's daughter Evelynn Foster and son William Bryant were both appointed by the court as special advocates for Davis. They are estranged from each other and disagreed over Davis's care and the management of her property. In particular, Foster contested the appointment of PGSC, while Bryant supported it. This appeal stems from Foster's broad litigation against PGSC. At some point before PGSC became involved, Foster was Davis's guardian. At that time, Foster had the opportunity to go through Davis's home and take items of personal property that she wished to keep. She inventoried the possessions she took. Once PGSC became guardian, Foster again went through the home and was allowed to take additional items as she wished. Within 90 days of its appointment, PGSC was required to complete a report outlining its plan of care and inventorying Davis's property. In the report it completed, PGSC noted that it moved Davis to an assisted living facility where she was settling in well. The report contained the required inventory section, where PGSC noted two vehicles, but did not further inventory Davis's personal property. PGSC reported Davis's monthly income to be about $2,000, based largely on a pension and government benefits. Davis's assets totaled approximately $168,000, and consisted of the vehicles, liquid assets of about $65,700, a home appraised at $95,000, and a few minor assets (furniture and money on deposit) at the assisted living facility. Davis's monthly expenses at the assisted living center were roughly $6,700, much higher than her $2,000 monthly income. In February 2008 PGSC estimated that Davis's liquid assets would be depleted in approximately a year. The sale of Davis's house would fund her care for roughly two and a half years. In part due to legal fees, Davis's liquid assets were rapidly depleted, and by May 2008 PGSC had determined it needed to sell Davis's house. That month, PGSC President David Schade wrote to several attorneys on the case, including Foster's attorney Allison Mendel, informing them of the need to sell the house. The letter stated that Davis's granddaughter Sandra Foster (Sandra)who otherwise would inherit the house-had asked for a first right to purchase the home, and that she could do so at fair market value if she confirmed her intent by June 7 and closed by July 15. A June 2003 letter from Schade to Mendel provided further details of the offer. Ultimately, Sandra did not purchase the house, and PGSC sold it instead to a third party. PGSC placed some of Davis's remaining household items in storage. Approximately 13 months before Davis's death, the federal government erroneously concluded that she had passed away and stopped paying her pension. PGSC did not timely rectify the error. The missed payments were not paid until after Davis's death, at which time the funds were split evenly between Bryant and Foster, the beneficiaries listed on Davis's pension form. Davis passed away in November 2004. PGSC's final accounting for its conservator-ship expenses is the subject of the present appeal. B. Proceedings 1. Judge Reese's rulings concerning PGSC's conservatorship After Superior Court Judge John Reese appointed PGSC as guardian over Foster's objections, Foster filed a petition to remove PGSC for cause. The court held a hearing in February 2004 and denied Foster's request, finding PGSC to have "acted appropriately, reasonably, and in the best interests of Ann Davis in all aspects of its service as guardian and personal representative." Judge Reese's order from the bench was severely critical of Foster, accusing her of "selfish manipulations" and "hypocrisy," and referring to her "mixed motives and contentious personality." Judge Reese ruled against Foster on every issue, stating: "Ms. Foster's personality is the reason PGSC was appointed in the first place. PGSC's job is not to confront Ms. Foster but to help Ann Davis." Discussing a problem with the insurance on Davis's house, the court held Foster partly responsible, stating that she "interfered in PGSC's work." The court also suggested that Foster's interference was "a transparent attempt to get the house to her daughter through inheritance rather than purchase or rent and was contrary to the current need of Ann Davis to benefit from her own asset." Because Davis passed away in November 2004, a few months after Judge Reese's written order, Foster's appeal from that order to this court was dismissed as moot. But we granted Foster the right to preserve the issues she raised for the anticipated conser-vatorship proceedings regarding PGSC's accounting. 2. Judge Suddock's hearing and initial ruling from the bench PGSC petitioned for approval of its final accounting, and the case came before Superi- or Court Judge John Suddock, who conducted a two-day evidentiary hearing in February 2008. At the close of the hearing, Judge Suddock ruled from the bench, extensively addressing each of Foster's points. Regarding PGSC's inventory, which listed only two cars and not Davis's smaller items, the court stated that it would have been prudent for PGSC to create a better inventory, and that such an inventory was "normally and appropriately done by conservators." But there was no harm, because the court found that Foster had taken the items important to her while going through the house. The court also indicated that PGSC had a good reason not to inventory: PGSC's reasonable belief that Foster "had gotten what she thought was important to keep." Regarding PGSC's use of paid storage for Davis's household items, the court held storage to be a reasonable expense during Davis's life, particularly in light of the contentious situation in the family. But the court found it unreasonable to pay for storage once Foster had been appointed personal representative, after Davis's death. The cost of unnecessary storage may have been up to $500. Regarding PGSC's failure to quickly correct the federal government's cessation of Davis's pension payments, the court postponed decision on the matter to see if PGSC could still obtain the funds or if the parties could work out an agreement. Regarding the sale of the house to a third party, and not to Sandra, the court found PGSC's actions not to be a breach of PGSC's fiduciary duty. Specifically, the court indicated it was reasonable for PGSC to assume that its letter to Mendel, containing a written offer, would be communicated to Sandra. The court also noted that past transactions with Sandra had failed, and that it would have been reasonable for PGSC to conclude that Sandra was not a serious business partner. Regarding attorney's fees, the court found that it was reasonable for PGSC to retain counsel to defend its actions. In addition, although Foster prevailed on a few issues, the court indicated those were rather insignificant and that "[PGSC] has overwhelmingly prevailed on the global attack on [its] handling of the matter." 3. Judge Suddock's second ruling from the bench, concerning pension payments A week after the first ruling from the bench, the court convened to address the pension issue, which it had given the parties additional time to negotiate. The court held that PGSC's failure to timely address the pension checks "did not comport with [its] high duty of care" as a fiduciary. But before issuing a ruling against PGSC, the court requested that PGSC attempt to correct the problem. Foster subsequently received half ($6,328.91) of the errant pension benefits but failed to notify PGSC of her receipt of the benefits. 4. Judge Suddock's final written decision PGSC eventually filed a renewed motion for closure, which Foster opposed in part. On June 1, 2009, the court issued its written decision, from which Foster has taken this appeal. The court found Foster's receipt of the pension funds to be in bad faith, and to have caused unnecessary cost to PGSC. Because Foster kept the funds instead of depositing them into the estate, the court held that she had breached her fiduciary duty to the estate. In determining damages from the receipt of the pension funds, the court looked to what would have happened with the funds had they been collected by the conservator-ship and passed to probate. The court determined that improper disbursement to Foster had led to damages of only $1,323.91. The court did not alter its earlier conclusion that PGSC was the prevailing party in the litigation. Because Foster still owed the estate unpaid damages and attorney's fees from her litigation before Judge Reese, the court tallied the amounts Foster and PGSC each owed and offset them, with the result that Foster owed the estate $1,448. The court found the reimbursement by the estate of all of PGSC's attorney's fees reasonable, and noted that the conservatorship account would be exhausted after these payments. Foster now appeals several of Judge Sud-doek's rulings. Specifically, she claims that PGSC breached its fiduciary duty by failing to inventory Davis's belongings, by paying storage fees for Davis's belongings, and by not selling the house to Sandra; that the superior court should not have applied probate law to the pension dispute; and that PGSC should not receive attorney's fees if it breached its fiduciary duty. III. STANDARD OF REVIEW We review the superior court's factual findings for clear error, reversing only if we have a definite and firm conviction that based on the record as a whole a mistake has been made. "Questions regarding the interpretation and application of a statute are questions of law to which we apply our independent judgment." To the extent that Foster contests the reasonableness of attorney's fees, and not the interpretation of an attorney's fees statute, we review for abuse of discretion, reversing only if the award is "manifestly unreasonable. IV., DISCUSSION Foster raises five issues on appeal. The first four concern PGSC's performance as conservator. In general, Foster argues that the superior court erred by being excessively lenient in its evaluations of PGSC's performance and by refusing to recognize the damages to Davis's estate caused by PGSC's performance. Specifically, Foster argues that PGSC breached its duty to Davis by (1) failing to conduct an adequate inventory of Davis's property, (2) paying for storage of Davis's property when free storage was available, (8) failing to correct in a timely manner the misrouting of Davis's pension payments, and (4) violating Davis's wishes regarding the offering of her house to her granddaughter. The practical significance of Foster's complaints regarding PGSC's performance lies in Foster's fifth issue on appeal, the superior court's approval of the reimbursement of PGSC's attorney's fees. Foster recognizes that a conservator is entitled to "reasonable" attorney's fees under AS 18.26.230. But she asserts that the superior court erred in allowing PGSC to reimburse itself from Davis's estate for attorney's fees accrued in defense of PGSC's mismanagement of the conserva-torship. PGSC breached its duty to Davis, Foster argues, and "fees incurred by a conservator in an unsuccessful defense of a breach cannot be said to be reasonable." Thus Foster seeks to reverse the superior court's decision regarding the reimbursement of PGSC's attorney's fees. We address the first two issues in tandem, and the remaining three issues individually. Regarding the first two issues-the cursory inventory and the use of paid storage-we conclude that two factual findings-(1) that the failure to sufficiently inventory was harmless because there was nothing of value in Davis's house, and (2) that the use of paid storage was reasonable because there were valuable items in Davis's house-may be inconsistent with each other. We thus remand for resolution of the apparent inconsistency in the superior court's factual findings. With regard to the third and fourth issues-the pension funds and the house sale-we affirm the superior court's conclusions. With regard to the fifth issue-attorney's fees-we hold as a matter of first impression that AS 13.26.2830 invites an analysis that is distinct from the "prevailing party" analysis of attorney's fees under Alaska Civil Rule 82. We remand to the superior court for a new caleu-lation of PGSC's reimbursable attorney's fees in light of (1) the need to revisit the factual findings, and (2) our clarified standard for the reimbursement of conservator attorney's fees under AS 13.26.230. A. The Superior Court's Factual Findings Regarding The Value Of Davis's Property Appear Inconsistent And Require Clarification. We first discuss the superior court's findings regarding inventory and storage. In light of the apparent inconsistency in the findings, we remand for clarification. 1. The superior court correctly concluded that PGSC's inventory did not satisfy the requirements of AS 13.26.250. Foster first claims PGSC's cursory inventory breached AS 18.26.250. Though Foster cited to AS 18.26.250, the superior court did not explicitly interpret the statute, which requires a conservator to complete an inventory of the ward's property within 90 days of the conservator's appointment. PGSC's initial inventory listed two vehicles and made the following statement: "PGSC's staff have not completed the personal property inventory, but found no significant personal property during our initial review." PGSC's CEO testified that he did not individually list the small items of personal property-those less than $400 in value-because it would not have been a cost-effective use of the guardian's funds to pay an appraiser to do so. Although PGSC did not respond to this appeal, it appears that PGSC claimed in the superior court that National Guardianship Association Standards require an inventory only of items valued over $400-a contention disputed by Foster. PGSC's decision not to list anything under $400 is not supported by any language in AS 13.26.250. In fact, PGSC's own inventory form suggests listing any item over $200. As the superior court persuasively suggests, PGSC could have cost-effectively inventoried the property by video or by listing contents by genre ("cooking ware," "flatware," and so on). We thus affirm the superior court's conclusion that PGSC's eursory personal property inventory, which listed only two vehicles, was not sufficient to satisfy the standards of AS 18.26.250. But this does not settle the issue of whether the inventory caused harm to Davis's estate. 2. Viewed in isolation, there may be sufficient evidence to conclude that PGSC's cursory inventory was harmless. Foster claims that PGSC's failure to inventory harmed the estate because it is now uncertain whether a fur coat, bible, or other unspecified sentimental items were lost during PGSC's control of the property The superior court found that the evidence does not support a conclusion that PGSC lost those items. Among other possibilities, the court noted that Davis could have lost or given away the items before PGSC took control. Viewed in isolation, the superior court's finding is adequately supported. The court noted that Foster had been through the house before PGSC's involvement, and again after PGSC took over, and that Foster could-and did-take any items she wanted. The court found it was reasonable for PGSC to conclude that Foster "had gotten what she thought was important to keep." Further, based on this finding, the court found it likely that the items in question were not present in the home when PGSC took over. Foster's appeal disputes none of these assertions. Thus the record contains support for the court's findings that Foster had not demonstrated PGSC was responsible for the loss of any items, and that the items in question may have been gone before PGSC took over. Based on these findings, the court's conclusion that PGSC's inadequate inventory caused no damage to the estate, standing alone, might not have been clearly erroneous. The problem with the court's finding lies in its relation to the court's findings on the issue of storage, as described below. 3. Viewed in isolation, there may be sufficient evidence to conclude that PGSC's use of paid storage was reasonable. Asserting that free storage was available at her own house, Foster claims it was unrea sonable for PGSC to pay storage fees for Davis's items. Foster claims PGSC's use of paid storage created unnecessary expense and breached PGSC's fiduciary duties. The superior court found storage reasonable, writing that "given family contention, it was appropriate to store these items at a neutral locale." Foster does not dispute the superior court's assertions regarding contentiousness in the family or the litigiousness of the situation. It appears that the strife between Foster and Bryant was so strong that staff at Davis's assisted living facility had to intervene between them a number of times, and considered evicting Davis due to the strife between her children. Viewed in isolation, there would thus be adequate support in the record for the superior court's finding that PGSC's use of paid storage was reasonable. 4. But viewed together, the superior court's factual findings regarding inventory and storage appear inconsistent. We will not disturb the factual findings of a trial court unless they are clearly erroneous. One sign of such error is an inconsistency between two factual findings-even if each one, standing alone, would be sufficiently supported by the record so as not to constitute clear error. In this case, the trial court found both that PGSC "could reasonably conclude . that [Foster] had gotten what she thought was important to keep," and that PGSC "reasonably believed that Ms. Foster wanted some of that stuff and that, therefore, it was necessary to retain it." The first finding supports the superior court's conclusion that PGSC's statutorily inadequate inventory did not result in damages to Davis's estate. The second finding supports the court's conclusion that PGSC's use of paid storage did not breach its duty to Davis. But it may not have been reasonable for PGSC to have believed that there was nothing in the house of value to Foster while placing the items in costly storage because of their high value. PGSC cannot be allowed to present its failure to inventory as harmless by asserting there was nothing valuable in the house and then, in the next breath, defend its use of a costly storage facility by asserting that the valuable items in the house required preservation. On remand, the superior court must clarify or otherwise resolve this apparent inconsistency. B. The Superior Court Did Not Err In Determining Damages Related To The Missed Pension Payments. Because the federal government thought Davis passed away before she actually did, 13 monthly pension payments totaling $12,647.82 were not sent to Davis's conserva-torship, and instead were later paid out directly to Foster and Bryant, the beneficiaries of Davis's pension plan. The superior court found PGSC responsible for not correcting the issue in a timely manner, resulting in the payment of $6,823.91 each to Foster and Bryant instead of to the conservatorship. Foster and Bryant would not agree to return the money to the conservatorship, but the court found little harm on the theory that in the probate proceedings AS 18.12.403 would have split $10,000 of the funds between them in any event, as the decedent's children, because the personal property remaining in the estate was "essentially worthless" and because there were no other assets at the end of the conservatorship subject to probate administration. Thus only $2,647.82 was mis-allocated to Foster and Bryant, or $1,828.91 each. Because the court had jurisdiction over Foster, the court ordered Foster to return her extra $1,823.91 to the estate, which left only Bryant's extra $1,828.91 as damages from PGSC's failure to respond in a timely manner. Thus, the superior court correctly concluded that the missed pension payments caused $1,828.91, and not $12,647.82, in damage to the estate. Foster also argues that the superior court erred in applying AS 18.12.408-be-cause it is a probate law and therefore part of a separate statutory scheme that is not applicable to a conservatorship case-and in requiring Foster to relinquish her overpayment. But Foster failed to raise these arguments before the superior court, and they are therefore waived. C. The Superior Court Did Not Err In Concluding That PGSC Did Not Breach Any Duty In The Way It Sold Davis's House. Davis's will stated that, after her death, her house should go to Foster's daughter Sandra. But because Davis's liquid assets were exhausted and PGSC needed to pay for Davis's care, PGSC decided to sell Davis's house while Davis was living. PGSC had a market analysis done on the house, and in letters dated May and June 2008 PGSC offered the house to Sandra for $185,500-the $138,000 market analysis value minus the cost of roof repairs. PGSC sent the letters to Foster's lawyer, Allison Mendel. Because Sandra did not come forward to buy the house, PGSC sold it to a third party. Foster claims Davis's house should have been sold to Sandra, not to a third party via a real estate broker. The alleged damages include real estate brokerage fees and the fees paid to PGSC for the time it spent conducting the sale. Specifically, Foster claims that AS 18.26.2905 required PGSC to adhere to Davis's estate plan, and that PGSC was therefore bound to sell Davis's house to Sandra, who would have inherited the home had it gone through probate. We conclude that AS 18.26.295 did not require selling the house to Sandra. Our case law does not squarely address the legal issue of what duty is imposed by section .295, and Foster briefs this question only in ecurso-ry fashion. Section .295 requires conservators to take the protected person's estate plan into account when "investing the estate," "selecting assets of the estate for distribution under AS 18.26.285(a) and (b)," and in certain other cireumstances. Section .285(a) gives conservators the ability to distribute income or principal from an estate in order to care for the protected person. Section .285(b) allows the conservator to make distributions to charity as the protected person would have. Given the depletion of Davis's assets, a conflict arose between Davis's welfare and her stated intention to leave her house to her granddaughter. One reasonable way to resolve the conflict was to offer the house to Sandra for sale. The superior court specifically found that PGSC went to adequate lengths to offer the house to Sandra, even though PGSC addressed the letters containing the offer to Foster's attorney rather than directly to Sandra. The superior court found that it was "reasonable . to group mother and daughter together," and that communication with an attorney constitutes communication with the party. Foster admits that PGSC made an offer to Sandra through Foster's attorney. Because Foster did not appeal the superior court's finding that it was reasonable that PGSC treated Foster and Sandra as a single party, represented by Foster's attorney, we affirm the superior court's conclusion that PGSC fulfilled any obligation to Sandra. In addition, the superior court did not err in finding PGSC's decision not to have the house appraised reasonable. Although PGSC may not have appraised the house, a market analysis was performed on the property, and Foster admits that the house sold at that price, which was well above earlier estimates. Foster has not indicated why an appraisal would have been required, how the market assessment was insufficient, or that the home could have sold for more. Foster also asserts that the superior court erred in finding that Sandra was not interested in the house. But the superior court made no such finding. Rather, Judge Sud-dock noted that Judge Reese-who had heard more testimony-found that Sandra did not express interest in the property. But Judge Suddock explicitly declined to give preclusive effect to that finding. Accordingly, there is no error because the court did not find Sandra uninterested, and declined to rely on an earlier court's finding to that effect. In conclusion, we affirm the superior court's ruling that PGSC's sale of Davis's home was reasonably conducted. D. It Was Error To Evaluate PGSC's Attorney's Fees Under Civil Rule 82's "Prevailing Party" Standard. A prevailing party before Alaska trial courts may receive attorney's fees from the opposing party under Alaska Civil Rule 82. In such a case, we give the trial court wide discretion. To determine whether a party was a prevailing party, the court looks generally to whether the party was successful on the main issue of the action, whether the party successfully defended the action, and whether judgment was entered in favor of the party. PGSC instead received a reimbursement of its attorney's fees from Davis's estate through AS 13.26.230, which provides that not otherwise compensated for services rendered, any . lawyer . [or] conservator . is entitled to reasonable compensation from the estate." The superior court apparently approached AS 18.26.2830 by conducting a Rule 82-like "prevailing party" analysis, where the conservator can lose on a number of issues and still collect full fees. Foster disputes the superior court's analysis, arguing that compensation is not "reasonable" under AS 18.26.2830 if it stems from unsuccessfully defending a breach of fiduciary duty. This is a question of first impression. We have only once previously addressed AS 18.26.230, holding that conser-vatorship funds should normally be used for attorney's fees incurred by the conservator. But that case did not involve a conservator breaching its fiduciary duty or otherwise doing anything wrong. The policies underlying Rule 82 and AS 18.26.2830 are very different. "Rule 82's primary purpose is to partially compensate a prevailing party for attorney's fees incurred in enforcing or defending the party's rights. . Without the rule, the rights of the prevailing party would be less completely vindicated because of the uncompensated expense of litigation. By contrast, AS 18.26.230 is a part of Alaska's statutory scheme for protecting the property of incapacitated persons. Under Rule 82, the interests of the prevailing party are paramount, while under AS 18.26.230, the paramount interest is protecting the incapacitated person's estate. Rule 82 offers partial attorney's fees for wrongly sued defendants, even if they end up losing on some points. It would be unwise to provide wrongly sued conservators with exactly the same relief, given that the attorney's fees in conservatorship cases will not be coming out of the unjustified plaintiff's pocket, but out of the pocket of an innocent third party, the incapacitated person. The reimbursement of conservator attorney's fees simply does not serve to impose a cost upon a party, like Foster, for deploying a wasteful and destructive litigation strategy. In the present case, the superior court noted that the litigation that had occurred was a "tragedy," but recognized that in light of the litigation, PGSC needed to hire an attorney in order to "preserve the estate." The superior court compared Foster's wide-ranging, often unclear litigation to the Allied invasion of Europe during World War II: "You couldn't tell where the invasion was going to be, whether it was going to be Normandy or Omaha Beach or somewhere on the other side of the peninsula, but you knew it was coming." The court tallied the small issues on which Foster prevailed, and concluded that "[PGSC] overwhelmingly prevailed on the global attack on [its] handling of the matter." The court also noted that in this case "it's impossible to divide out the component of representation that can be allotted to the bare handful of issues on which Ms. Foster here prevails." Finally, the court stated that any deduction it could take from PGSC's billing would constitute "an equitable kick in the pants" merely because PGSC's "handling of the matter was not perfect." But in light of the purposes of AS 13.26.2380, an equitable rebuke to PGSC may indeed be in order. PGSC conducted a statutorily inadequate inventory, may have caused damage to Davis's estate through this inventory and through its decision to use paid storage, and caused damage to the estate by failing to correct the misdirection of Davis's pension funds. It would be unreasonable to reimburse PGSC from Davis's estate for attorney's fees spent in defense of actions that harmed the estate in these ways. We thus remand to the superior court to deduct from PGSC's reimbursed fees those that it incurred in defending actions that caused significant harm to Davis's estate. It may be that these fees are difficult to calculate, or are quite small But they should nevertheless be deducted based on the principle that it is unreasonable and therefore impermissible under AS 18.26.2830 to require a protected person to fund a conservator's defense of actions that damaged the protected person's estate, even if that defense was undertaken in good faith. Based on the partial briefing before us, we decline to reach the more abstract issues of whether a conservator's breach of a statutory obligation must always also be a breach of fiduciary duty, and whether a conservator's defense of a breach of fiduciary duty must under every circumstance result in a loss of reimbursement for attorney's fees. It is enough in the present cireumstances to conclude that under the "reasonable compensation" standard of AS 18.26.2830, a conservator may not obtain from the estate reimbursement for attorney's fees spent in the unsuccessful defense of conservator actions that caused significant harm to the estate. v. CONCLUSION Because the superior court did not err in its treatment of the pension funds and the house, we AFFIRM its holdings with regard to those matters. Because the court's factual findings regarding the value of Davis's property appear inconsistent, we REMAND for clarification of those findings. We likewise REMAND for a new calculation of PGSC's reimbursable attorney's fees under AS 13.26.230. STOWERS, Justice, not participating. . The superior court referred variously to "the estate" and "the conservatorship account." . Nerox Power Sys., Inc. v. M-B Contracting Co., 54 P.3d 791, 794 (Alaska 2002). . Mat-Su Valley Med. Ctr., LLC v. Advanced Pain Ctrs. of Alaska, Inc., 218 P.3d 698, 700 (Alaska 2009) (citing State v. Jeffery, 170 P.3d 226, 229 (Alaska 2007)). . DeNardo v. Cutler, 167 P.3d 674, 677-78 (Alaska 2007) (quoting Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005)) (internal quotation marks omitted). . Foster presents PGSC's failure to inventory as a breach of fiduciary duty. But "[where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal." Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990). In making her argument, Foster has not cited any legal authority on the nature of a conservator's fiduciary duty, nor any legal authority suggesting what would constitute a breach of such a duty. Rather, Foster simply asserts that PGSC owed the "highest duty of diligence and care" to Davis, and that PGSC breached that duty. Other states have addressed the issue of the fiduciary duty of conservators. California, for cxample, requires both good faith and objective reasonableness in the conservator context, and has held that "as a fiduciary, a conservator is bound to act with reasonable prudence and pursuant to a good-faith belief that its actions will tend to accomplish the purpose of its trust by benefiting the conservatee." Conservatorship of Lefkowitz, 50 Cal.App.4th 1310, 58 Cal.Rptr.2d 299, 301 (1996). More leniently, Illinois requires guardians to use the same prudence with the protected person's property as the guardian would with his or her own property. Parsons v. Wambaugh's Estate, 110 Ill.App.3d 374, 66 Ill.Dec. 145, 442 N.E.2d 571, 573 (1982). But we decline to reach the issue as a matter of first impression in Alaska on the basis of the cursory briefing before us. We consider the present case in terms of PGSC's alleged harm to Davis's estate rather than in terms of PGSC's alleged breach of fiduciary duty. . Cf. Anderson v. City of Bessemer City, 470 U.S. 564, 575-76, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (suggesting that internal inconsistency between factual findings can establish clear error (citing United States v. Aluminum Co. of Am., 148 F.2d 416, 433 (2d Cir.1945); Orwis v. Higgins, 180 F.2d 537, 539-40 (2d Cir.1950))); accord Al-Babtain v. Banoub, 410 Fed.Appx. 179, 183 (11th Cir.2010). We routinely review factual findings for consistency and have rejected findings that were internally inconsistent. See, e.g., Tara U. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 239 P.3d 701, 705 (Alaska 2010) (vacating order based on "unexplained apparent inconsistencies" that prevented effective appellate review of factual findings); Fletcher v. Trademark Constr., Inc., 80 P.3d 725, 732 (Alaska 2003) (upholding factual findings after concluding in part that they were not "internally contradictory"); Silvers v. Silvers, 999 P.2d 786, 791 (Alaska 2000) (ordering reconsideration on remand of factual issue where trial court's ruling was "self-contradictory"'). . AS 13.12.403 provides that the decedent's surviving spouse is entitled from the estate to a value, not exceeding $10,000 in excess of security interests in the items, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent's children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $10,000, or if there is not $10,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $10,000 value. . Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) ("A party may not raise an issue for the first time on appeal."). Although the record shows PGSC raised AS 13.12.403, Foster did not contest the statute's applicability. . See Marron, 123 P.3d at 998 (citing Cizek v. Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 848 (Alaska 2003)). Where fees have been awarded under a statute, this court has looked to whether the superior court's findings were sufficient to meet the terms of the statute. Jones v. Jones, 925 P.2d 1339, 1343 (Alaska 1996). . Wooten v. Hinton, 202 P.3d 1148, 1152 (Alaska 2009) (citing Alaska Ctr. for the Env't v. State, 940 P.2d 916, 921 (Alaska 1997)). . The superior court did not explicitly cite to AS 13.26.230 in its opinion, though it did refer to "reasonable"" fees. Nevertheless, the superior court's language in its ruling from the bench makes clear that it was correctly relying upon the "reasonable compensation" standard from AS 13.26.230. . In re S.H., 987 P.2d 735, 742 (Alaska 1999). . See id. at 737-38. . State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 398 (Alaska 2007). . Because the reimbursement of conservator attorney's fees derives from statutory authority, we will review trial courts' application of the standard laid out in this decision not for abuse of discretion, but as a mixed question of law and fact. That is, we will review for clear error the trial court's factual findings regarding the nature and extent of any harm to the conservatorship estate caused by the conservator's actions; and we will review de novo the trial court's legal conclusions regarding whether any harm was sufficiently significant as to render compensation for the defense of that harm "unreasonable" under the terms of AS 13.26.230. See Jones v. Jones, 925 P.2d 1339, 1343 (Alaska 1996) ("[Tlhe question is whether . the superior court's findings are sufficient to support an award of attorney's fees under [the relevant statute].").

10321139

Frank W. TURNEY, Appellant, v. STATE of Alaska, Appellee

Turney v. State

1996-08-09

No. A-5852

283

293

922 P.2d 283

922

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Frank W. TURNEY, Appellant, v. STATE of Alaska, Appellee.

Frank W. TURNEY, Appellant, v. STATE of Alaska, Appellee. No. A-5852. Court of Appeals of Alaska. Aug. 9, 1996. J. John Franich, Assistant Public Advocate, Fairbanks, and Brant G. McGee, Public Advocate, Anchorage, for Appellant. Joseph S. Slusser, Assistant District Attorney, Barrow, Harry L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

5747

36426

MANNHEIMER, Judge. Frank W. Turney appeals his convictions for second-degree trespass, AS 11.46.330(a)(1), and disorderly conduct, AS 11.61.110(a)(2). Turney was prosecuted for these offenses as a result of his protest activities outside the state courthouse in Fair banks. On appeal, Turney asserts that his protest activities were protected by the First Amendment to the United States Constitution and Article I, Section 5 of the Alaska Constitution. For the reasons explained in this opinion, we reverse Turney's trespass conviction but we affirm his disorderly conduct conviction. Since 1990, Turney has been demonstrating at the Fairbanks courthouse in support of the "Fully Informed Jurors Association". Turney believes that jurors should be told of their power to engage in "jury nullification" — a jury's effective power to disregard a trial judge's instructions and refuse to enforce laws they disagree with. In March 1994, Turney acquired a bullhorn, and his demonstrations both inside and outside the courthouse grew increasingly aggressive and disruptive. Ronald J. Woods, the Area Court Administrator for the Fourth Judicial District, received complaints from both jurors and court staff that Turney had disrupted proceedings with his protests. Among his other activities, Turney would stand outside the wall of the jury assembly area and yell with his bullhorn. At other times, Turney would bleat like a sheep at the prospective jurors and he would beat on the doors of the room, disrupting not only the jury assembly proceedings but also other court proceedings in adjoining areas of the building. Brenda Richard, a jury clerk, testified that the court's jury orientation sessions were often disrupted by Turney's loud protests outside the jury assembly room. When Richard tried to deter Turney by closing the window blinds, Turney would yell even louder and would come closer to the building or would go around to the glass door to the jury assembly room (which had no blinds). Rita Roy, another jury clerk, testified that Turney engaged in protests outside the juror assembly room every day that jury trials were held in the courthouse. His stridency was not only disruptive and distracting to the potential jurors, but also so distressing to Roy personally that it became emotionally difficult for her to do her work. On the morning of May 9, 1994, Woods hand-delivered a letter to Turney concerning his protest activities. In this letter, Woods told Turney that he was welcome to enter court property "to peaceably conduct court business or to observe court proceedings". Woods also told Turney that he could continue to use the sidewalks encircling the courthouse as a site for his protests, since these sidewalks "are a traditional public forum, subject only to reasonable time, place, and manner restrictions". However, Woods informed Turney that he was now "prohibited from entering or remaining on court property to engage in protest activities, picketing, or pamphleteering". Woods also told Turney that he was "prohibited from making excessive noise that disrupts or interferes with court business". Approximately two months later, on the morning of July 13th, Turney was again outside the jury assembly room of the Fairbanks courthouse. Using his bullhorn, Tur-ney shouted at the windows of the jury assembly room and bleated like a sheep. Brenda Richard was showing a juror orientation videotape to the potential jurors. She testified that Turney's amplified shouting made it difficult for prospective jurors to listen to the videotape and to hear Richard's instructions. She noted that prospective jurors were "distracted" by Turney's shouting and that some of the prospective jurors questioned her about Turney. Richard called the Judicial Services Section of the Alaska State Troopers to complain that Turney was again using a bullhorn outside the jury assembly room. One of the troopers went outside and asked Turney to leave. Turney complied with this request. On the basis of this incident, Turney was charged with trespass and disorderly conduct. A jury convicted Turney of both counts. The Trespass Conviction Turney argues that the State failed to prove that he committed a trespass. Under AS 11.46.330(a)(1) and AS 11.46.350(a)(l)-(2), the crime of trespass can be committed in two ways pertinent to Turney's case. First, trespass is committed when a person enters or remains upon property at a time when the property "is not open to the public and . the. defendant is not otherwise privileged to [be there]". AS 11.46.350(a)(1). The trial judge in Turney's case ruled that Turney could not be convicted under this section because Turney conducted his protest activities during normal business hours when the courthouse and its surrounding grounds were open to the public. Second, trespass is committed when a person enters property that is open to the public but then "fail[s] to leave . after being lawfully directed to do so personally by the person in charge [of the property]". AS 11.46.350(a)(2). The trial judge ruled that the State could proceed under this theory of trespass. The judge told the jurors that, in order to find Turney guilty of trespass, they had to find that Turney "knowingly remained unlawfully in or upon the premises of the courthouse, after personally being ordered to leave . [and that he] recklessly disregarded a lawful order that he not remain." The problem in Turney's case is to identify the "lawful order" directing him to leave the courthouse grounds. As noted in the introductory section of this opinion, Turney voluntarily ended his protest and left the courthouse grounds on July 13th when the trooper asked him to leave. Thus, Turney could not be convicted of ignoring the trooper's instructions on the day named in the complaint. Rather, the State's theory of prosecution was that Turney had committed trespass by returning to the courthouse to renew his protest activities after receiving Ronald Woods's letter on May 9th. As noted earlier, Woods's letter informed Turney that he was "prohibited from . remaining on court property to engage in protest activities". This letter, the State contended, was the "lawful order" directing Turney to leave the courthouse property and never return to conduct protest activities. The trial judge's instructions to the jury embodied this theory of the case. In particular, the trial judge instructed the jury: [A]n owner or occupier of premises can put limits upon the right of another to enter or remain upon the premises. If the owner or occupier informs another of those limits, then that person . may become a trespasser if he or she later enters upon the premises and exceeds those limits. On appeal, Turney argues that he has a First Amendment right to engage in protest activity on court property. Turney contends that the court administrator had no authority to bar future protest activity on court property, and therefore Woods's letter to Turney constituted an unenforceable "prior restraint" on constitutionally protected speech. The United States Supreme Court has indicated that similar restrictions on political activity at a courthouse are constitutional. See United States v. Grace, 461 U.S. 171, 177-78, 182, 103 S.Ct. 1702, 1707, 1709, 75 L.Ed.2d 736 (1983). However, we need not resolve this issue of First Amendment law to resolve Turney's appeal of his trespass conviction. The threshold question presented is purely one of trespass law. Even if we assume that, consistent with the First Amendment, the Area Court Administrator had the authority to bar Turney from protesting in and around the courthouse, there are two flaws in the State's theory of prosecution. "Unlawful Remaining", as Applied to Public Buildings and Surrounding Property, Requires that the Trespasser Refuse or Ignore a Contemporaneous Order to Leave. Turney was convicted under the theory of trespass codified in AS 11.46.350(a)(2): that he "fail[ed] to leave [the courthouse] premises . after being lawfully directed to do so". Courts construing similar statutes generally hold that, when the property involved is a public building, a person does not commit a trespass unless the person ignores or refuses a contemporaneous request to leave. That is, this type of trespass statute does not authorize a government official to bar a person from returning to a public building and its surrounding property in perpetuity. [A] statute may legitimately criminalize an act of peaceful but unauthorized presence on public property for purposes other than those to which the property has been dedicated[.] [But] a criminal trespass statute which [applies to] public property [in general], and which [proscribes] refusing or failing to leave a public building or [public] grounds upon being requested to do so by an authorized employee[,] limits the power of public officials . to notifying people, in specified circumstances, that they may not remain on the property and does not permit them to bar entry. 75 Am.Jur.2d 137, Trespass, § 179. For instance, in In re Appeal No. 631, 282 Md. 223, 383 A.2d 684 (1978), the Maryland Court of Appeals construed a trespass statute which proscribed the act of "refusing or failing to leave a public building . upon being requested to do so by [an] authorized employee". 383 A.2d at 686. The defendant in that case visited a junior high school after being told on previous occasions that he was not to return to the school property. He was taken to the vice-principal and asked to explain why he had come back to the school; when he failed to advance a satisfactory explanation for his presence, he was arrested. The Maryland court reversed the defendant's conviction: [T]he State concedes that at no time on [the day of the alleged trespass] was the defendant asked to leave the school premises. He was, rather, immediately arrested after. failing to disclose to the vice-principal reasons sufficient to justify his presence. No request [to leave] having been given, there was none to disobey. It is true that the vice-principal had twice previously warned the defendant that he was "not to be on this property." These requests to leave, however, were given on occasions one or two weeks prior to the subject incident[.] [The trespass statute] makes a person's conduct criminal only when he "refuses or fails to leave the building or grounds of these institutions after being requested to do so by an authorized employee of the institution." In re Appeal No. 631, 383 A.2d at 687 (emphasis in the original). In State v. Johnson, 381 So.2d 498 (La.1980), a case dealing with quasi-public property (a bus terminal), the defendant entered the terminal cafeteria and was arrested for trespassing because he had previously been ordered to leave the bus terminal and never return. The government conceded that, during the episode in question, the defendant was "at no time requested . to leave the premises . because of [the] prior warnings and admonitions". 381 So.2d at 499. The Louisiana statute, 14:63:3A, defined trespass as the act of "go[ing] into or upon or remaining] in or upon . any structure . or [land] . after having been forbidden to do so." Nevertheless, the Louisiana Supreme Court construed the statute to require a reasonably contemporaneous [oral] or written request to leave as an indispensable element of the offense- "[R]ea-sonably contemporaneous" . does not necessarily mean a request immediately preceding the arrest of an alleged [trespasser], We deem a request to be reasonably contemporaneous if given a few hours prior to the arrest, the same day as the arrest[,] or such other pre-arrest interval [as is] reasonable under the . circumstances of each particular case. [But] it is patently unreasonable [to construe the trespass statute to allow] a citizen with peaceful intent [to] be permanently and perpetually barred from the premises of a public transportation facility[.] State v. Johnson, 381 So.2d at 500. This court has previously looked to judicial decisions construing New York Penal Law § 140.00 et seq. for aid in construing Alaska's trespass and burglary statutes. See Johnson v. State, 739 P.2d 781, 783 n. 1 (Alaska App.1987); Arabie v. State, 699 P.2d 890, 894-95 n. 3 (Alaska App.1985). In trespass cases dealing with orders to leave and not return, the New York courts recognize a distinction between public facilities and private property. Owners of private property (even private property open to the public for commercial purposes) may order a person to leave and never come back. If the person returns, he or she can be convicted of trespass for the mere act of returning. People v. Licata, 28 N.Y.2d 113, 320 N.Y.S.2d 53, 268 N.E.2d 787 (1971). This court enforced a similar ban imposed by the owner of private property in Johnson v. State, 739 P.2d 781 (Alaska App.1987): the defendant was convicted of trespass for returning to a ski resort after being ordered not to return to the premises for the rest of the season. But, under New York's general trespass statutes, the supervisor of a public facility has no such power to bar an individual from ever returning to the facility. Even though a person has previously been ordered to leave and not return, this person may not be prosecuted for trespass merely for returning on another occasion. People v. Marino, 135 Misc.2d 304, 515 N.Y.S.2d 162, 165-66 (Justice Ct.1986); People v. Hutchinson, 124 Misc.2d 487, 477 N.Y.S.2d 965, 967-68 (Sup.Ct.1984); People v. Wilson, 122 Misc.2d 55, 469 N.Y.S.2d 905, 907 (City Ct.1983); People v. DeClemente, 110 Misc.2d 762, 442 N.Y.S.2d 931, 934-35 (City Crim.Ct.1981); People v. Nunez, 106 Misc.2d 236, 431 N.Y.S.2d 650, 653 (City Crim.Ct.1980), aff'd 114 Misc.2d 573, 454 N.Y.S.2d 290 (1982); People v. Wolf, 63 Misc.2d 178, 312 N.Y.S.2d 721, 724 (Dist.Ct.1970). We note that, in analogous situations, government agencies have obtained civil injunctions barring individuals from entering or using government properties for unauthorized purposes. See, for example, United States v. Gilbert, 920 F.2d 878 (11th Cir.1991). In addition, both the federal government and various state governments have enacted statutes which empower public officials to bar individuals from returning to specified public facilities. But the statute that Turney was charged with violating, AS 11.46.350(a)(2), is not this type of statute. Alaska Statute 11.46.350(a)(2) is a general trespass statute which provides that a person may not remain on property after being lawfully ordered to leave. As explained above, this type of statute is generally construed not to grant officials the authority to permanently ban people from public facilities. We construe AS 11.46.350(a)(2) in accordance with these authorities and hold that this statute did not authorize the Area Court Administrator to permanently ban Turney from the courthouse property. A person can not be convicted under AS 11.46.350(a)(2) of "fail[ing] to leave" a public facility "after being lawfully directed to do so" unless the person fails to heed a reasonably contemporaneous directive to leave, or (as in People v. Bembry, cited in footnote 1) the person heeds the directive to leave but then returns to the public facility after only a short while. In the present case, Woods's letter was delivered to Turney on May 9th. Tur-ney returned to the courthouse on July 13th. Even if Woods's letter had purported to completely ban Turney from the courthouse grounds, the delivery of that letter was not sufficiently contemporaneous with Turney's act of returning to the courthouse to make Turney's action an "unlawful remaining". When a Person Lawfully Enters Property, the Person's Intent to Engage in Prohibited Activities on the Property Does Not, By Itself, Make the Person's Continued Presence an "Unlawful Remaining". As' noted above, Woods's letter to Turney did not totally prohibit Turney from returning to the courthouse. Instead, Woods told Turney that he was welcome to come onto courthouse property for some purposes ("to peaceably conduct court business or to observe court proceedings") but that he was prohibited from "remaining on court property to engage in protest activities". Thus, the State could argue, Turney was free to enter the courthouse or its grounds, but he was on notice that he could not "remain" on court house property if he intended to renew his protest activities. Under the State's theory, Woods's letter was a self-effectuating order directing Tur-ney to desist from protest. Turney might have initially entered the courthouse property lawfully, but his subsequent decision to engage in protest (knowing that the Area Court Administrator had forbidden him to do so) toned his continued presence on the courthouse grounds into an unlawful "remaining" for purposes of the trespass statute. This appears to be the theory of prosecution embodied in the jury instructions in Turney's case. Such a theory of criminal liability is inconsistent with both New York and Alaska decisions. In People v. Graves, 76 N.Y.2d 16, 556 N.Y.S.2d 16, 18, 555 N.E.2d 268, 270 (1990), a case dealing with the definition of burglary, the New York Court of Appeals carefully distinguished between the requirement of (1) an unlawful entry or remaining, and (2) the requirement of an intent to commit a crime. The New York court held that a defendant's secret intent to commit a crime does not turn an otherwise lawful entry or lawful presence into an unlawful entry or an unlawful remaining. Three decades before, the Alaska Supreme Court applied the same rule in Smith v. State, 362 P.2d 1071, 1073-74 (Alaska 1961). The court held that a defendant's lawful entry into a building does not become an "unlawful entry" for purposes of the burglary statute merely because the defendant at all times intended to commit a crime inside the building. See also Pushruk v. State, 780 P.2d 1044, 1048 (Alaska App.1989) (a trespasser who, inside the building, forms the intent to commit a crime does not thereby commit burglary); Shetters v. State, 751 P.2d 31, 36 n. 2 (Alaska App.1988) (rejecting the notion that a lawful presence on property is converted to an "unlawful remaining" when the person forms an intent to steal). Thus, a defendant's intent to commit a crime does not convert his lawful presence on property into a trespass. Were the rule otherwise, a store owner could convert all shopliftings into burglaries by the expedient of posting a sign at the door informing customers that they are permitted to remain on the premises only as long as they intend to commit no crime. We construe AS 11.46.350(a)(2) accordingly. When a person has lawfully entered a building or has lawfully entered upon property, that person does not "remain unlawfully" merely because the person engages in activities that the person knows are forbidden by the property owner. Although the person may be civilly and/or criminally liable for these prohibited actions, there is no trespass (unless, of course, the property owner becomes aware of the person's activities and asks the person to leave, and the person then refuses). In the present case, the trial judge ruled (and the State effectively concedes) that Turney entered the courthouse grounds lawfully. (Turney entered the property during business hours, when the courthouse was open to the public.) We assume that Turney entered the property with the intention of renewing his protest activities — activities that Woods, the person in charge of the property, had explicitly forbidden. Nevertheless, neither Turney's intent to engage in protest on the courthouse grounds nor his actual renewal of protest activities was sufficient, by itself, to convert Turney's entry onto courthouse property into an "unlawful entry". Because Turney committed no unlawful entry, the only other theory of criminal liability available to the State was that Turney had committed an "unlawful remaining". As explained above, before Turney could be convicted under AS 11.46.350(a)(2) of "unlawfully remaining" in a public facility, the State had to prove that Turney disregarded a reasonably contemporaneous directive to leave. Woods's letter to Turney was not a directive to leave; rather, it was a statement of the conditions placed on Turney's return to the courthouse. Moreover, even if Woods's letter could be construed as a conditional directive to leave (if Turney resumed his protest activities), it was delivered to Turney on May 9th; this directive was not reasonably contemporaneous with Turney's conduct on July 13th. It is undisputed that Turney left the courthouse on July 13,1994 without incident after the trooper asked him to leave. Turney therefore never committed an act of unlawful remaining on July 13th. We thus conclude that Turney committed no act of trespass on that day, and we reverse Turney's conviction for second-degree trespass. The Disorderly Conduct Conviction Turney was convicted of disorderly conduct for violating AS 11.61.110(a)(2). In pertinent part, this statute defines the crime of disorderly conduct as "[making] an unreasonably loud noise" "in a. public place[,] with intent to disturb the peace and privacy of another or with reckless disregard that [one's] conduct is [disturbing the peace and privacy of another] after being informed that [one's conduct] is having that effect". Tur-ney raises two arguments against his conviction. First, Turney asserts that all political advocacy is exempted from the disorderly conduct statute. Turney's argument turns on the definition of "noise" contained in AS 11.61.110(b): As used in [AS 11.61.110], "noise" is "unreasonably loud" if, considering the nature and purpose of the defendant's conduct and the circumstances known to the defendant, including the nature of the location and the time of day or night, the [defendant's] conduct involves a gross deviation from the standard of conduct that a reasonable person would follow in the same situation. "Noise" does not include speech that is constitutionally protected. (Emphasis added.) Turney asks this court to concentrate on the second (italicized) sentence of this definition. He argues that his advocacy of jury nullification was protected by the First Amendment (which generally protects all political advocacy). From this, Turney derives the proposition that his protest at the courthouse does not fall within the definition of "noise" because, under the second sentence of AS 11.61.110(b), "noise" does not include constitutionally protected speech. Thus, Turney concludes, he can not be convicted of disorderly conduct for engaging in constitutionally protected speech, even if his speech was "unreasonably loud" (as defined in the first sentence of the statute). Admittedly, the second sentence of AS 11.61.110(b) could be read in the manner Turney suggests. However, under such a reading, a protester could station himself on the street outside a political opponent's window and shout all night through an amplifier without violating the disorderly conduct statute (as long as he was shouting about political or social issues). Similarly, a protester could use a bullhorn in the hallways of a courthouse to disrupt court proceedings throughout the day. Moreover, the phrase "constitutionally protected speech" encompasses more than political advocacy. For instance, the First Amendment protects truthful commercial speech. See 44 Liquormart, Inc. v. Rhode Island, — U.S. —, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). If the second sentence of AS 11.61.110(b) were read as Turney suggests, then merchants who blared advertisements for their wares over a loudspeaker as they drove through residential neighborhoods at three o'clock in the morning could not be prosecuted for disorderly conduct (since commercial speech is "constitutionally protected"). We doubt that the legislature's intent when enacting the second sentence of AS 11.61.110(b) was to create such broad exemptions to the law's regulation of disruptive noise. Rather, the legislative history of AS 11.61.110(b) strongly suggests that the second sentence of the statute was intended to clarify that AS 11.61.110(b) should not be interpreted to interfere with First Amendment rights. As drafted by the Criminal Code Revision Subeommission, proposed 11.61.110(b) originally read: As used in [TD 11.61.110], "unreasonably loud noise" means noise which constitutes a gross deviation from the standard of conduct that a reasonable person would follow in the same situation as the defendant, considering the nature and purpose of the conduct of the defendant and the circumstances known to him, including the nature of the location and the time of day or night. Alaska Criminal Code Revision, Tentative Draft, Vol. 5, p. 79. In their commentary to this section, the drafters stated: In Marks[ v. Anchorage, 500 P.2d 644, 653 (Alaska 1972)], the [supreme] court noted that the phrase "unreasonable noise" without more might be considered "indefinite." Subsection (b) both clarifies the meaning of "unreasonably loud" and insures that free speech will not be infringed upon by requiring that noisemaking constitute a "gross deviation from the standard of conduct that a reasonable person would follow in the same situation." The intent of the Subcommission is clear: the legitimate exercise of first amendment rights can never constitute disorderly conduct. Tentative Draft, Vol. 5, p. 86. The legislature departed from the Tentative Draft by enacting a two-sentence version of AS 11.61.110(b). The first sentence of the statute is a reworded variant of the tentative draft: As used in [AS 11.61.110], "noise" is "unreasonably loud" if, considering the nature and purpose of the defendant's conduct and the circumstances known to the defendant, including the nature of the location and the time of day or night, the [defendant's] conduct involves a gross deviation from the standard of conduct that a reasonable person would follow in the same situation. The legislature then added a second sentence of their own device: "Noise" does not include speech that is constitutionally protected. The purpose of this second sentence was apparently to codify the limitation contained in the Criminal Code Revision Subcommission's commentary: that "the legitimate exercise of first amendment rights can never constitute disorderly conduct". This legislative purpose is expressed in the legislature's commentary to AS 11.61.110(b) (a commentary that mirrors the Subcommission's commentary to the Tentative Draft): In Marks v. City of Anchorage, 500 P.2d 644 (Alaska 1972), the court noted that the phrase "unreasonable noise" without more might be considered "indefinite." Subsection (b) both clarifies the meaning of unreasonably loud noise and insures that free speech will not be infringed upon by specifically providing that "noise" does not include speech that is constitutionally protected. Under the Code the exercise of protected first amendment rights can never constitute disorderly conduct. 1978 Senate Journal, Supp. No. 47 (June 12), p. 95. According to Turney's argument, the second sentence of AS 11.61.110(b) means that the disorderly conduct statute simply does not apply to any speech afforded protection under the First Amendment. But the legislative commentary to this sentence states that the purpose of this second sentence was to insure that "the exercise of protected first amendment rights can never constitute disorderly conduct". (The legislature's commentary tracks the commentary to the tentative draft, which speaks of "the legitimate exercise of first amendment rights".) There is a crucial difference between engaging in speech that is protected by the First Amendment and "exercising] . protected first amendment rights". Even though political and commercial speech is protected by the Constitution, the government retains the power to regulate the time, location, and manner in which that speech is disseminated. The United States Supreme Court has "regularly rejected the assertion that people who wish to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please". United States v. Grace, 461 U.S. at 177-78, 103 S.Ct. at 1707. Rather, the government can place reasonable restrictions on the time, place, and manner of political protest. Grace, 461 U.S. at 177, 183-84, 103 S.Ct. at 1707, 1710. The Alaska Supreme Court has recognized that, consistent with the First Amendment, a state government can "limit speech or assembly in specific places under limited circumstances, as, for example, in a courtroom while the court is in session". Marks v. Anchorage, 500 P.2d 644, 647 (Alaska 1972). See Fardig v. Anchorage, 803 P.2d 879, 882-83 & 883 n. 4 (Alaska App.1990) (discussing the limitations that a government can legitimately place on political speech occurring on public property). The wording of AS 11.61.110(b)'s second sentence — the declaration that "noise" does not include "speech that is constitutionally protected" — is admittedly susceptible of the reading Turney suggests. But the fundamental question in this case is to ascertain the legislative purpose behind that second sentence. See Millman v. State, 841 P.2d 190, 194 (Alaska App.1992) ("The guiding principle of statutory construction is to ascertain and implement the intent of the legislature[.]"). The legislative commentary adopted with the statute declares that the second sentence of AS 11.61.110(b) was intended to insulate "the exercise of protected first amendment rights" from prosecution under the disorderly conduct statute. The legislature apparently believed that this intention was perfectly expressed in the second sentence of AS 11.61.110(b). But, as discussed above, the government is authorized to regulate the time, place, and manner in which people engage in speech, even if that speech is protected by the First Amendment. In other words, people engaged in constitutionally protected speech are not necessarily engaged in activity that is protected from criminal prosecution by the First Amendment. Under Turney's suggested interpretation of AS 11.61.110(b), political protesters and fish mongers alike could bellow their messages at all hours of the day in any location they chose, disrupting other people's business and sleep without restraint. Turney suggests no rationale for exempting such behavior from the disorderly conduct statute, and we can think of none. The First Amendment requires no such exemption. In ascertaining the legislature's intent, this court "is obliged to avoid construing statutes in a way that leads to patently absurd results or to defeat of the obvious legislative purpose behind the statute". State v. Lowrence, 858 P.2d 635, 638 (Alaska App.1993). We conclude that the second sentence of AS 11.61.110(b) was not intended to create a wholesale exemption for political and commercial speech irrespective of time, place, or decibel level. Rather, the second sentence embodies the legislature's intention that the disorderly conduct statute not be used to prosecute activity that is protected from prosecution by the First Amendment. Turney argues that, if the second sentence is construed in this way, it becomes superfluous: no criminal statute can lawfully be used to prosecute activity that is protected from prosecution by a provision of the Constitution. However, as we read AS 11.61.110(b), the second sentence of the statute modifies and clarifies the first sentence. The first sentence of AS 11.61.110(b) declares that conduct can be prosecuted if it constitutes a "gross deviation from the standard of conduct that a reasonable person would follow in the same situation". The second sentence, by exempting the legitimate exercise of First Amendment rights, clarifies that the existence of this "gross deviation" must be gauged only by reference to the time, place, and manner in which a speaker delivers his or her message, and not the substantive content of the speech itself. In other words, no matter how "unreasonable" the speaker's message, the content of that message can not be used to determine whether the speaker's conduct deviated from "the standard of conduct that a reasonable person would follow in the same situation". We therefore reject Turney's assertion that the disorderly conduct statute exempts all political speech. If Turney engaged in "unreasonably loud" protest at the courthouse (as defined in AS 11.61.110(b)), he could be prosecuted for violating the disorderly conduct statute. Turney argues in the alternative that, if the disorderly conduct statute is construed to cover unreasonably loud political protest, then the statute is unconstitutional. Turney contends that the disorderly conduct statute is both overbroad and vague. To support his constitutional challenge, Turney relies primarily on Marks v. Anchorage. In Marks, the supreme court dealt with a now-superseded disorderly conduct statute. That statute proscribed "making unreasonable noise" with "intent to cause public inconvenience, annoyance[,] or alarm". 500 P.2d at 645. The supreme court concluded that the terms "unreasonable", "inconvenience", "annoyance", and "alarm" were all too vague to give adequate notice of what conduct was prohibited, and were so broad as to stifle many forms of speech protected by the First Amendment. 500 P.2d at 652-53. However, Turney was not prosecuted under the older statute interpreted in Marks. Rather, Turney was prosecuted under the current disorderly conduct statute, AS 11.61.110. In Earley v. State, 789 P.2d 374, 376 n. 2 (Alaska App.1990), this court upheld AS 11.61.110 against both overbreadth and vagueness challenges. Turney completely ignores Earley. His opening brief does not cite the case. Even after the State's brief pointed out that Ear-ley was the controlling authority on Turney's constitutional claims, Turney failed to discuss (or even acknowledge) Earley in his reply brief. Turney's pointed refusal to address a controlling decision of this court must be interpreted as a tacit concession that Earley is dispositive of Turney's overbreadth and vagueness challenges to the disorderly conduct statute. Conclusion Turney's conviction for second-degree trespass is REVERSED. His conviction for disorderly conduct is AFFIRMED. . Compare People v. Bembry, 128 Misc.2d 243, 490 N.Y.S.2d 431, 432 (City Ct.1985): the defendant, who was ordered to leave a public office building and not return until he was sober, could properly be convicted of trespass for returning a few minutes later. . See, for example, Maryland Code, Article 27, Section 577B (discussed in Appeal No. 631, supra), which authorizes the highest official or governing body of any public school to deny access to the buildings or grounds of the institution to persons who are not registered as students, faculty, or staff of the institution and who "are acting in a manner disruptive or disturbing to the normal educational functions of the institution". The constitutionality of this statute was upheld in Kirstel v. State, 13 Md.App. 482, 284 A.2d 12 (1971). See also People v. Leonard, 62 N.Y.2d 404, 477 N.Y.S.2d 111, 114, 465 N.E.2d 831, 834 (1984) (discussing a similar regulation that authorizes the banning of individuals from New York university campuses); 18 U.S.C. § 1382 (authorizing the commander of a militaiy installation to bar specified people from entering the base). . This was the rule at common law as well. "Because breaking, as an element of common-law burglary, requires a breach of the building made by trespass, it cannot be established by the act of one who had authority to open that very door at that particular time.... [Olpening a door to enter a store during regular business hours is not a breaking even if done with intent to steal." R. Perkins & R. Boyce, Criminal Law (3rd edition 1982), p. 250 (italics in the original).

10320620

MUNICIPALITY OF ANCHORAGE, Appellant, v. John M. GENTILE; Greg Bauer; Jerry Fries; Margaret Borrecco; Donavon Langdok; and William Smith, Appellees. John M. GENTILE; Greg Bauer; Jerry Fries; Margaret Borrecco; Donavon Langdok; and William Smith, Appellants, v. MUNICIPALITY OF ANCHORAGE, Appellee

Municipality of Anchorage v. Gentile

1996-08-16

Nos. S-5965, S-6305

248

268

922 P.2d 248

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

MUNICIPALITY OF ANCHORAGE, Appellant, v. John M. GENTILE; Greg Bauer; Jerry Fries; Margaret Borrecco; Donavon Langdok; and William Smith, Appellees. John M. GENTILE; Greg Bauer; Jerry Fries; Margaret Borrecco; Donavon Langdok; and William Smith, Appellants, v. MUNICIPALITY OF ANCHORAGE, Appellee.

MUNICIPALITY OF ANCHORAGE, Appellant, v. John M. GENTILE; Greg Bauer; Jerry Fries; Margaret Borrecco; Donavon Langdok; and William Smith, Appellees. John M. GENTILE; Greg Bauer; Jerry Fries; Margaret Borrecco; Donavon Langdok; and William Smith, Appellants, v. MUNICIPALITY OF ANCHORAGE, Appellee. Nos. S-5965, S-6305. Supreme Court of Alaska. Aug. 16, 1996. Mark A. Casciari, Seyfarth, Shaw, Fair-weather & Geraldson, Chicago, IL, George M. Newsham, Assistant Municipal Attorney, Richard L. McVeigh, Municipal Attorney, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellant. Peter J. Maassen, Ingaldson Maassen, P.C., Anchorage, and Peter Gruenstein, Gruenstein, Hickey & Stewart, Anchorage, for Appellees. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

10962

68537

OPINION EASTAUGH, Justice. I. INTRODUCTION After the Municipality of Anchorage (MOA) reduced the post-retirement medical benefits of its retired police officers and firefighters, John Gentile and five other retirees, representing 154 affected retirees, filed a class action to restore benefits and prevent future decreases. The superior court permanently enjoined the reductions, held that MOA did not breach the covenant of good faith and fair dealing, and awarded the retirees substantial attorney's fees against MOA. These appeals followed. We remand for reconsideration of attorney's fees. We otherwise affirm. II. FACTS AND PROCEEDINGS A. Background MOA reduced the post-retirement medical benefits of its retired police officers and firefighters in 1992, substantially increasing their deductibles and copayments. B. The Collective Bargaining Agreements Although the retired firefighters and police officers comprise the plaintiffs' class, the claims of these two groups of retirees are based on two separate series of collective bargaining agreements (CBAs). The police officer retirees' contract claims are based on CBAs between MOA and the Anchorage Police Department Employees Association (AP-DEA); the firefighter retirees' contract claims are based on a series of CBAs between MOA and the International Association of Firefighters (IAFF). The historical context, established by trial court evidence, of contract negotiations is important. In the 1970s the Teamsters Union, representing Anchorage police officers, negotiated contracts providing substantial post-retirement medical coverage. Although union police officers had an excellent retirement plan, unrepresented command officers had less-favorable coverage. This created a problem for MOA in that veteran officers did not wish to be promoted because they would lose their more-favorable retirement benefits. In 1977, the Anchorage Municipal Assembly approved Anchorage Code Ordinance (ACO) 77-257 (1977). The ordinance provided medical benefits to the command officers under the "medical insurance program of the Municipality" at the Municipality's expense. At a MOA Assembly meeting, Police Chief Anderson stated that ACO 77-257 would help close the gap that existed between represented and non-represented public safety officers. The superior court found that "[i]n adopting AO 77-257, both Mayor Sullivan and the Assembly understood the open-ended nature of the cost and commitment MOA was undertaking to the non-represented public safety employees with respect to their post-retirement medical benefits." The APDEA and IAFF CBAs at issue here were negotiated about three years after ACO 77-257 was approved. The post-retirement medical benefits provision of the pertinent APDEA CBAs contain the following language: Effective January 1, 1981, the Municipality shall provide medical coverage for all retirees from the Anchorage Police Department who are not provided such coverage by another plan. Major medical coverage including coverage for audio and visual will be provided. The retiree will have the option to purchase dental coverage at his own expense. Coverage under this provision may not be' diminished during the term of this agreement. This language was first adopted in the CBA governing July 1980 to October 1982. All subsequent CBAs between the APDEA and MOA contained this language. Every IAFF CBA since January 1, 1981, has contained the following post-retirement medical benefits provision: 16.2 Members of the Union who retired after January 1, 1978 may participate in the post retirement medical benefits plan at the cost of the employer. Eligible retired members may elect to participate in the audio, vision or dental coverages of the plan. Such coverage, if elected, shall be at the expense of the retired member. The trial court found that MOA intended to provide a level of medical retirement coverage to represented IAFF employees similar to that provided command officers under ACO 77-257. John Franklin, who at different times had been Deputy Fire Chief, Fire Chief, Commissioner of Public Safety, and City Manager for Mayors George Sullivan and Tony Knowles, was involved in the negotiations with IAFF. He understood throughout the negotiations that the level of post-retirement medical benefits could not be diminished for current retirees. He widely communicated that belief to firefighters and other MOA employees. C. Conduct under the CBAs Several retired police officers and firefighters testified that they believed their benefits could not be reduced from their 1980 levels. They stated that shortly before retirement one or more MOA employees unequivocally informed them that the retirees' post-retirement medical benefits would not be subject to reduction. The superior court found those police and fire employees to be more credible than those witnesses who offered conflicting testimony. The retirees' beliefs were also supported by letters MOA sent to retirees stating that they were entitled to health insurance, and by benefits booklets MOA sent retirees between 1978 and 1992. MOA did not dispel the retirees' belief that retiree medical benefits would not decrease. In 1986 the MOA legal department considered whether MOA could unilaterally terminate the medical benefits of retirees. It concluded that the contracts and documents given to retirees "may create . a vested right." The legal department advised MOA that if it wished to decrease post-retirement medical benefits it should immediately change the language of the agreements and documents given to the retirees and instruct its management not to make "lifetime" representations regarding post-retirement medical benefits. MOA did not follow any of these recommendations. In 1991, while Tom Fink was mayor, the MOA Assembly created an advisory committee (Committee) to study the issue of unfunded liabilities created by the retiree medical benefits of MOA police and firefighters. The Committee prepared an interim and a final report. Both reports concluded that there was "substantial risk of liability" if MOA reduced medical coverage for retirees. The interim report recommended that "coverage continue to be provided as in the past," and the final report recommended implementation of "reasonable cost containment measures" (such as a preferred provider plan). However, the final report noted that with the present retirees, "it appears the Municipality must act so that actions are not determined to be a diminishment of retiree benefits." The final report recommended that "the Assembly and Administration never again enter into a blank cheek unlimited contract or accept the existence of an unfunded liability." The Committee's conclusions were consistent with the legal opinion of Corbett & Kane, a California law firm hired to present independent legal advice to the Committee. Corbett & Kane reviewed the CBAs, municipal ordinances, MOA letters sent to retirees, the health benefits booklets and policies, and other documents concerning retiree medical benefits prepared by MOA's Employee Relations Department. In its written report to the Committee, the law firm concluded that "[tjhere is a substantial risk of liability if medical benefits for bargaining unit Retirees or Deferred Vesteds are eliminated or reduced or if a charge for them is imposed." It also informed the Committee that a unilateral decrease would be the riskiest option to reduce the liability. MOA's administration and Assembly received the Committee's reports. Mayor Fink read, and disagreed with, the Committee's reports and the Corbett & Kane analysis. He is a law school graduate and is knowledgeable about insurance. He testified at trial that he had read articles in the Wall Street Journal that indicated that there were "multiple cases across the country challenging post retirement benefits in the public sector as well as the private sector." He also testified that before deciding to decrease the benefits, he asked the Municipal Attorney, Richard McVeigh, whether such a move would be legal. McVeigh recalled telling the Mayor that there did not appear to be anything in the contract language that would require the benefits to continue. However, McVeigh acknowledged that he did not research the issue because the issue was being handled by the Committee. Mayor Fink decided to reduce the benefits. He wanted the unfunded liability issue to be resolved through litigation, believing that the risk was minor compared to the cost MOA would incur if no action were taken. In 1992 Mayor Fink reduced post-retirement medical benefits to the same level as medical benefits for active public safety employees. D. Legal Proceedings The Gentile plaintiffs, acting as representatives of retirees affected by the reductions, filed their class action suit against MOA in October 1992. The retirees ultimately claimed breach of contract, bad faith breach of contract, violation of the Alaska Constitution, breach of fiduciary duties, estoppel, and breach of the covenant of good faith and fair dealing. After a bench trial on the breach of contract and constitutional claims, the trial court granted a permanent injunction that prevented MOA from reducing the medical benefits. The court found that the parties intended to establish vested post-retirement medical benefits. It also held that the Alaska Constitution prevented MOA from diminishing the retirees' medical benefits. It entered final judgment against MOA on September 3, 1993. After a separate three-day trial, the trial court held that the attempted benefit reduction did not violate the covenant of good faith and fair dealing. It entered a separate judgment on March 14, 1994 against the retirees on that claim. Counsel for the class moved for an attorney's fees award. They sought "an amount that acknowledged the value of the benefit that the litigation preserved to the class, took into account the case's contingent risks, and advanced the public policies of [Alaska Civil] Rule 23." The trial court found the retirees to be the prevailing parties and awarded them $342,531 in attorney's fees against MOA. It held that under Civil Rule 82 it was unable to include any risk-enhancement in the award. MOA appeals from the September 3, 1993 judgment, arguing the trial court (1) erred in holding that the CBAs intended to vest post-retirement medical benefits at retirement; (2) erred in holding that the medical benefits were "vested" under article XII, section 7 of the Alaska Constitution; and (3) usurped the Assembly's legislative authority. The retirees appeal from the March 14, 1994 judgment and the order awarding attorney's fees, asserting the trial court erred in holding that MOA did not violate the covenant of good faith and fair dealing and in failing to award enhanced attorney's fees. III. DISCUSSION A. Intention to Vest Post-Retirement Medical Benefits at Retirement We must decide whether MOA and the APDEA and IAFF intended the CBAs to vest post-retirement medical benefits at retirement. As both parties recognize, this is fundamentally a question of contract. The goal of the court is to enforce the reasonable expectations of the parties. Stepanov v. Ho mer Elec. Ass'n, Inc., 814 P.2d 731, 734 (Alaska 1991). In determining the intent of the parties the court looks to the written contract as well as extrinsic evidence regarding the parties' intent at the time the contract was made. Fairbanks N. Star Borough v. Tundra Tours, 719 P.2d 1020,1024 (Alaska 1986). The parties' expectations are assessed by examining the language used in the contract, case law interpreting similar language, and relevant extrinsic evidence, including the subsequent conduct of the parties. Id. (citing Peterson v. Wirum, 625 P.2d 866, 870, 872 nn. 7 & 10 (Alaska 1981), and Mitford v. de Lasala, 666 P.2d 1000, 1005 (Alaska 1983)). The interpretation of words in a contract, where the extrinsic evidence is undisputed, is generally a task for the trial court whose decision is reviewed de novo. Oaksmith v. Brusich, 774 P.2d 191, 195 (Alaska 1989); Norton v. Herron, 677 P.2d 877, 880 (Alaska 1984). However, where the trial court relies on conflicting extrinsic evidence, as in this case, we are "confined to determining whether the facts support the trial court's interpretation." Tundra Tours, 719 P.2d at 1025. We review the trial court's findings under the clearly erroneous standard. Id. A clearly erroneous finding is one which leaves the court with "a definite and firm conviction on the entire record that a mistake has been made." Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991) (quoting Parker v. Northern Mixing Co., 756 P.2d 881, 891 n. 23 (Alaska 1988)). The trial court concluded that MOA breached its contract with the retirees by diminishing their post-retirement medical benefits. It found that the parties intended when they entered into the CBAs to assure represented members that their retirement benefits would not be decreased if they retired during the term of the contract. In arriving at its conclusion, the trial court employed Alaskan contract principles enumerated in Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767 (Alaska 1982), Peterson v. Wirum, 625 P.2d 866, and Wright v. Vickaryous, 598 P.2d 490 (Alaska 1979). Although the trial court also considered applicable federal law, it did not rely on any legal presumptions or inferences federal courts use when considering changes in post-retirement medical benefits. Although the parties urge us to apply conflicting presumptions favorable to their side, we agree with the trial court that traditional contract principles are sufficient to decide this ease. A presumption or inference should be used only when traditional contract principles fail. See, e.g., Bidlack v. Wheelabrator Corp., 993 F.2d 603, 609 (7th Cir.), cert. denied, 510 U.S. 909, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993) (stating that in contract interpretation, default rules such as presumptions should only be used after extrinsic evidence has been considered). MOA initially argues that the language of the CBAs does not indicate an intent to vest. Citing Bidlack, MOA contends that the absence of clear language showing an intent to vest indicates a lack of an intent to vest. MOA argues that if the parties had intended the benefits to vest, they would have employed words like "vested," "accrued," or "guaranteed." That usage would have simplified resolution of this dispute, but those terms are not prerequisites to finding the parties intended the benefits to vest. Even though, as MOA correctly notes, the language of the CBAs does not explicitly indicate an intent to vest post-retirement medical benefits at the time of retirement, the language is consistent with such an intent. In such circumstances, courts should turn to extrinsic factors to determine contract meaning. Trial courts have broad latitude in looking at extrinsic evidence. The trial court in this case properly considered extensive extrinsic evidence. 1. Negotiation histories The APDEA and IAFF CBAs have separate negotiation histories. The trial court, however, found that since at least 1980, it was MOA's policy to keep the police and firefighter benefits as similar as possible. The testimony of former Mayor Sullivan supports the court's finding. Although we will separately review the negotiation histories of the APDEA and the IAFF CBAs, MOA's stated policy lends support to the trial court's conclusion that the parties intended to vest post-retirement benefits under both sets of CBAs. a. APDEA contract negotiations The first APDEA CBA at issue here governed from July 1980 through October 1982. The pertinent language, see supra p. 253, was the same in subsequent CBAs. The trial court found that "[w]ith respect to [the 1980 APDEA CBA], the intent of both parties was to assure that those represented employees who retired prior to the expiration of that contract received medical retirement benefits that would not be reduced or otherwise impaired subsequent to their retirement." MOA argues that the court incorrectly found that the APDEA contract was intended to match the command officers' post-retirement medical benefits under PERS and ACO 77-257. It argues that if MOA intended to bind itself to terms beyond the duration of the agreement it would have accepted the APDEA's proposed language that "[t]his provision will remain in effect in this and all subsequent agreements. Coverage under this provision may not be diminished." MOA contends that it rejected APDEA's proposed language because it did not want to eliminate this issue from all future negotiations. Instead, the parties settled on the sentence: "Coverage under this provision may not be diminished during the term of this agreement." MOA contends that this compromise language was intended to limit the level of guaranteed benefits to the three-year term of the agreement. The trial court found, however, that this was not the intent of the various proposals. The court found that APDEA's offer was intended to "obligate MOA to provide a guaranteed level of coverage to all future retirees in perpetuity." (Emphasis added.) In essence, the trial court found that if the AP-DEA language had been accepted, the level of retirement medical benefits could never be renegotiated, even for future retirees. In comparison, the compromise language actually adopted vested benefits for those retiring during the operating CBA, but allowed the post-retirement benefits of active employees to be negotiated in future CBAs. The record supports this finding. The lead MOA negotiator, Bill Smith, testified that he understood the language APDEA proposed would obligate MOA to provide the same benefits for future retirees. The testimony of APDEA's chief negotiator, Fred Di ehter, also supports the court's finding. He testified that during the 1980 negotiations he researched post-retirement medical benefits and concluded that they were necessarily vested. He testified that he communicated his findings to Smith on several occasions and that Smith never contradicted or voiced opposition to Dichter's conclusion. MOA claims that ACO 77-257 was intended to be a twenty-year commitment rather than open-ended. MOA therefore contends that the parties could not have intended the APDEA and IAFF CBA retiree benefits to vest if the parties simply intended to match the benefits provided to command officers. MOA's argument is contrary to the language of ACO 77-257, which states that benefits will "cease when the retired member is no longer eligible to receive a monthly benefit." The ordinance also states that eligibility will be available to those who are entitled to receive a "presumably permanent monthly benefit from said retirement plan." Nowhere does the ordinance state that it is limited to twenty years. There was testimony the Assembly was fully informed the ordinance imposed an "open-ended commitment." The negotiation history of the AP-DEA CBA supports the trial court's finding. MOA cites evidence supporting its position; however, under the clear error standard of review we do not reweigh the evidence heard by the trial court. Horton v. Hansen, 722 P.2d 211, 215 (Alaska 1986); Alaska R.Civ.P. 52(a). We conclude that the trial court did not commit clear error in finding that the parties intended to vest post-retirement medical benefits for APDEA retirees. b. IAFF contract negotiations The first IAFF contract in dispute was in effect January 1981 through December 1983. It contained the retiree health benefits language quoted above. Subsequent IAFF agreements contained the same language. The trial court found that MOA intended the 1981-83 IAFF agreement "to provide a level of medical retirement coverage to represented IAFF employees similar to that provided to the command officers under AO 77-257." MOA argues that the trial court ignored extrinsic evidence that MOA did not intend to vest retiree benefits. There is no indication the trial court ignored this evidence. Furthermore, following review of the Sullivan and French testimony, we conclude that it is more ambiguous than MOA contends. Other evidence supports the trial court's finding. A November 1979 MOA "Response to IAFF Proposal" stated that the MOA negotiator would recommend that the retirees be provided "the same level and type of p[o]st retirement medical benefits as all Municipal employees receive under PERS." (Emphasis omitted.) Since PERS benefits are vested, it is fairly inferable that the parties also intended the IAFF benefits to vest. (This inference is also supported by evidence of the course of performance of the CBA.) The trial court's finding was not clearly erroneous. 2. Evidence of post-formation conduct Alaska courts may use extrinsic evidence regarding the intent of the parties "to interpret a contract regardless of whether the contract appears to be ambiguous on its face or not." Peterson, 625 P.2d at 871; Vickaryous, 598 P.2d at 497 n. 22. We have recognized that the parties' conduct after entering into the contract is probative of the intent behind the agreement. Peterson, 625 P.2d at 870 n. 7. MOA argues that extrinsic evidence is relevant "insofar as it relates to 'the time the contract was made.'" MOA contends that "the trial court erred in relying on the testimony of a number of people who were un-knowledgeable about CBA intent, or were merely voicing opinions independent of CBA intent." In essence, MOA argues that the only people who may testify about the intent of the parties to the CBA are those who were in the negotiating room during formation of the contract. It relies on Norton, 677 P.2d at 881, which it claims found that "the testimony of a party's attorney who was not present at contract negotiations" was not indicative of contract intent. Norton is readily distinguishable. We there held that the testimony of a title company manager who drafted a contract was not indicative of the parties' intent both because his knowledge was more speculative than first-hand, and because it shed no light on what the parties contemplated with respect to the events that ultimately occurred. Id. In comparison, the testimony on which the trial court relied here and which MOA characterizes as irrelevant was from persons with first-hand knowledge of party intent and conduct. (Because institutions are the parties to the CBAs, party intent may be demonstrated by knowledgeable individuals who think and act for the institutions.) MOA consequently argues that it was error to rely on the testimony of John Franklin, Deputy Fire Chief and Fire Chief during the Sullivan administration, and Commissioner of Public Safety and City Manager during the Knowles administration, because "Franklin testified that he never directly participated in any of the CBA negotiations." The trial court found that Franklin understood that, from the late 1970's through the Knowles administration, the administration was obligated to maintain post-retirement medical benefits to current retirees without diminishment. He widely communicated that understanding to many other firefighters and MOA employees. The trial court did not err in relying on Franklin's testimony concerning actions he took based on his understanding of the CBAs. We likewise reject MOA's arguments directed at the testimony of other MOA employees. Testimony of the following persons was correctly considered by the trial court and supports that court's findings: former Mayor Tony Knowles; Ron Otte, Deputy Chief and Chief of Police during the Knowles administration; former municipal attorneys Jerry Wertzbaugher and Richard Kibby; Sally Wood, MOA benefits specialist; and MOA labor specialist John Marton. These witnesses were all involved in performing the contracts and all testified that they operated under the assumption that retiree medical benefits were vested. Gentile class members also supported the trial court's findings by testifying that in conversations with MOA personnel shortly before retirement, they were told their benefits would not be subject to reduction, This testimony is substantial evidence that the parties believed the benefits to be vested. The record also supports a conclusion that this understanding prevailed when the par ties negotiated and entered into subsequent APDEA and IAFF contracts. We consequently hold that the trial court did not err in concluding that MOA breached the APDEA and IAFF CBAs by unilaterally decreasing the retirees' medical benefits. It correctly entered a permanent injunction preventing any future attempt to decrease those benefits. B. Judicial Authority to Grant Relief MOA argues that the Assembly was not fully aware of the costs involved when it accepted the APDEA and IAFF CBAs. MOA compares the acceptance of the CBAs with the Assembly's previous approval of ACO 77-257, which gave command officers lifetime post-retirement health benefits. When the Assembly passed ACO 77-257, it had access to a twenty-year estimate of the costs of the benefits. MOA argues that because there was ho similar cost estimate for the CBAs, the trial court's judgment saddles the Municipality with a financial obligation the Assembly never accepted. It argues that the trial court's judgment usurped the Assembly's power and should be considered "an unauthorized promise by a government official to appropriate government funds, which under Alaska [law] is of no force and effect." MOA's argument is without merit. The trial court did not err in finding that MOA entered into contracts that granted vested benefits to the retirees. Consequently, MOA's asserted failure to comprehend or fund its liability does not excuse its contractual obligations on a theory the trial court somehow usurped the power of the MOA Assembly. C. Covenant of Good Faith and Fair Dealing As a matter of law, all contracts in Alaska contain an implied covenant of good faith and fair dealing. Alaska Pacific Assurance Co. v. Collins, 794 P.2d 936, 947 (Alaska 1990); Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979). This covenant primarily sounds in contract; in limited situations, however, it may sound in tort. Loyal Order of Moose, Lodge 1392 v. International Fidelity Ins. Co., 797 P.2d 622, 626 (Alaska 1990); State Farm Fire & Casualty Co. v. Nicholson, 777 P.2d 1152, 1156 (Alaska 1989). In Alaska, breach of the covenant is a tort only if it is in the surety or insurance context. See Loyal Order of Moose, Lodge 1392, 797 P.2d at 626-27 (holding tort claim based on covenant available in surety context); Nicholson, 777 P.2d at 1156-57 (holding insurance contracts are subject to tort action for breach of duty of good faith and fair dealing). We have specifically declined to extend a tort remedy to commercial and employment contracts. State v. Transamerica Premier Ins. Co., 856 P.2d 766, 774 (Alaska 1993) (refusing to extend tort to commercial contract); ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153-54 (Alaska 1988) (refusing to extend tort based on covenant to employment contract). The trial court held that MOA was potentially liable in tort because it was the underwriter of the health insurance plan and was in a position of trust in relation to the retirees. The retirees contend that the court failed to properly apply the tort standard to MOA. They argue that the trial court's finding that MOA did not breach the covenant of good faith and fair dealing was clearly erroneous and unsupported by the record. We do not reach the merits of the retirees' arguments because we believe the trial court erred in subjecting MOA to potential tort liability for its actions. Public policy concerns do not require the imposition of tort liability in this case. We first recognized the tort of breach of the duty of good faith and fair dealing in Nicholson, 777 P.2d at 1156. We there noted that an action in tort provides a remedy for harm to insureds in situations where there is no breach of an express contract or where contract damages fail to adequately compensate insureds. Id. at 1156. A primary concern is that without the threat of tort liability, insurance companies may be "encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than that due under the policy." Scott Wetzel Serv., Inc. v. Johnson, 821 P.2d 804, 810 (Colo.1991) (quoting Bibeault v. Hanover Ins. Co., 417 A.2d 313, 318 (R.I.1980)); Nicholson, 777 P.2d at 1156. Insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies. See Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 485, 510 P.2d 1032, 1037 (1973) (holding that tort liability exists if company refuses without proper cause "to compensate its insured for a loss covered by the policy"); Noble, 624 P.2d at 868 (holding tort liability applies when "dealing with its insured on a claim"); Nicholson, 777 P.2d at 1157 (holding that tort liability exists for "insurer's bad faith failure to settle a first-party claim"). It is unnecessary to decide here whether MOA would be subject to tort liability for falling to deal fairly and in good faith in the settlement of a covered insurance claim. That is not the nature of the retirees' claim. They instead claim that MOA breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the CBAs. Although insurance is the topic in dispute, MOA breached the CBAs, not policies of insurance. The public policy concerns are fundamentally different. When the parties enter into a CBA, they are not in substantially disparate bargaining positions. APDEA and IAFF are unions. They negotiate with MOA at arm's length. CBAs are generally not form contracts that the union must either accept or reject. Evidence of bargaining over the disputed contract language establishes that the CBAs were not adhesion contracts. Although the retirees are in a poorer financial position than MOA, the context that makes insurance claim eases compelling is not present. The retirees are not like insureds who, after suffering a loss from which a claim arises, may find themselves at a great disadvantage, potentially forcing them to accept less than the amount of their loss. We believe that CBAs are closer to commercial contracts than to insurance contracts. In Transamerica Premier Ins. Co., we held that in commercial contracts, "a tort for breach [of the covenant of good faith] arises only when 'a party's conduct . rises to the level of a traditionally recognized tort.' " 856 P.2d at 774 (quoting Akers, 753 P.2d at 1154). We therefore conclude that MOA was not subject to tort liability under the covenant of good faith and fair dealing. Because the retirees succeeded on the breach of contract claim, it is unnecessary to determine whether MOA breached a contractual duty of dealing in good faith. D. Attorney's Fees Invoking Civil Rules 28 and 82, the retirees moved for an attorney's fees award of $2.8 million. MOA, arguing that it was the prevailing party on a substantial portion of the litigation, moved for an attorney's fees award to be set off against the retirees' fee recovery. Implicitly rejecting MOA's motion, the trial court concluded that the retirees were the prevailing parties. It awarded them attorney's fees of $342,581, 100% of "actual" hourly fees calculated as the product of counsels' usual hourly rates and the hours spent. This award thus exceeded the award called for by Rule 82(b)(2) (thirty percent of actual reasonable fees where no money judgment is recovered), but the court declined to award a risk premium under Rule 82 and also declined to fund an enhanced award via reduced future benefits to the retirees. The retirees argue on appeal that the trial court should have awarded greater-than-actual (enhanced) attorney's fees. They argue several theories in support: that public policy favoring the promotion of class action lawsuits and the availability of competent counsel requires enhanced fees, that a common fund analysis applies, and that, at the least, the class members should pay for the risk factor portion of the fees. Underlying each theory is the retirees' premise that compensation for class action attorneys should recognize the risk of not being paid. Before we address these arguments, we note that the class representatives and their attorneys apparently agreed that the attorneys would receive whatever fees the trial court awarded at the conclusion of the case, and would receive nothing if the class did not prevail. At the fee hearing below, class counsel stated they had no right to recover directly from the class members any unpaid balance of accrued fees. Thus, both the payment and the amount of any fees the attorneys might recover were contingent on the class prevailing and entry of a fee award. This arrangement appropriately recognized the broad discretion of trial courts in assessing attorney's fees in class actions. See, e.g., 7B Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1803, at 493-94 (2d ed. 1986) ("The court's authority to reimburse the parties stems from the fact that the class action is a creature of equity and the allowance of attorney-related costs is considered part of the historic equity power .") (hereinafter Federal Practice and Procedure). In comparison, typical non-class action retention agreements express or imply definite standards for calculating the fees clients are to pay their attorneys, either on an hourly rate basis or on a percentage of a contingent monetary recovery. This case thus differs from the typical Alaska non-class action suit, in which a prevailing party moves under Rule 82 for an award requiring the losing party to make the prevailing party partially or completely whole for the fees the prevailing party must pay its attorneys under a retention agreement. Rule 82 governs any award of attorney's fees to be paid to retirees by MOA. "Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule." Alaska R.Civ.P. 82(a). No other "law" or agreement applies here. This court has long recognized that "the purpose of Civil Rule 82 is to afford reasonable partial compensation for attorney's fees to the winning civil litigant." Wise Mechanical Contractors v. Bignell, 718 P.2d 971, 973 (Alaska 1986) (citing Malvo v. J.C. Penney Co., 512 P.2d 575, 588 (Alaska 1973), and Irving v. Bullock, 549 P.2d 1184, 1190 (Alaska 1976)). See also Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1190 (Alaska 1993) ("attorney's fees awarded under Alaska Civil Rule 82, . are intended to provide reasonable partial compensation"); In re Soldotna Air Crash Litigation, 835 P.2d 1215, 1225 n. 2 (Alaska 1992) ("Civil Rule 82 allows the award of partial attorney's fees to the prevailing party in a civil action"). "The supreme court has identified Rule 82's primary goal as partially reimbursing a prevailing party for attorney's fees." Alaska Judicial Council, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases 52 (1995). In Tobeluk v. Lind, 589 P.2d 873 (Alaska 1979), this court compared fee awards under Civil Rule 82 and the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. We noted: "The Alaska Rules and Federal statute are similar in that both provide the court with the discretionary authority to award attorneys' fees to a prevailing party, and both intend fees awards to be compensatory rather than punitive." To-heluk, 589 P.2d at 876. We then observed: Despite the above similarities, the two fee award provisions are based on dissimilar underlying policies. The purpose of Rule 82 is to partially compensate a prevailing party for the expenses incurred in winning his case. It is not intended as a vehicle for accomplishing anything other than providing compensation where it is justified. In comparison, the explicit purpose of the fee shifting provision in the federal statute, 42 U.S.C. § 1988, is to encourage meritorious claims which might not otherwise be brought. Id. (citations and footnote omitted). Given this long-recognized purpose, Rule 82, both before and after its amendment, cannot ordinarily be used to award to a prevailing party an amount larger than the party has agreed to pay its attorneys. Rule 82 requires the trial court to decide what portion of the fees incurred by the prevailing party will be assessed against the losing party. In the usual non-class action case, the fees incurred by the prevailing party are set by contract and can be calculated without judicial intervention. "Actual" fees are those the party agrees to pay its lawyer. Because the class representatives in this case agreed to pay their lawyers whatever fees the court awarded, however, the "actual" fees were not necessarily limited to hourly fees. To determine the Rule 82 award, the trial court had to: (1) determine the compensable value of the services the attorneys rendered to the class, and (2) apply Rule 82 to the amount calculated in Step 1 to decide how much MOA should pay. (Part III.D.3 below discusses a potential eonse- quence if a Step 2 award is less than the Step 1 calculation.) We now consider the theories the class representatives advance in support of their request for an enhanced fee award. 1. Enhancement of actual attorney's fees The retirees argue that the trial court erred in failing to award enhanced fees against MOA, on the theory that public policy and equity require a risk premium to encourage the "effective and socially beneficial use of Rule 23" and to ensure that attorneys in class action cases "are not put off by the necessarily speculative nature of their compensation." We have previously upheld the award of enhanced fees in context of workers' compensation. Wise, 718 P.2d at 974-75. In Wise, we stated that an enhanced fee award was proper because of the need to provide incentives to attorneys to represent injured workers. Id. Incentives are needed, we reasoned, because of the inability of certain plaintiffs to pay an hourly rate and the financial risk posed by contingency fee arrangements. We stated: If an attorney who represents claimants makes nothing on his unsuccessful cases and no more than a normal hourly fee in his successful cases, he is in a poor business . As we have noted, the objective of awarding attorney's fees in compensation cases is to ensure that competent counsel are available to represent injured workers. This objective would not be furthered by a system in which claimants' counsel could receive nothing more than an hourly fee when they win while receiving nothing at all when they lose. Id. at 975 (citations omitted). Nonetheless, in Wise we distinguished workers' compensation cases from cases in which Rule 82 governs fee awards: In workers' compensation cases the objective is to make attorney fee awards both fully compensatory and reasonable so that competent counsel will be available to furnish legal services to injured workers. Wien Air Alaska v. Arant, 592 P.2d 352, 365-66 (Alaska 1979). By contrast, the purpose of Civil Rule 82 is to afford reasonable partial compensation for attorney's fees to the winning civil litigant. Id. at 973. Awarding an enhanced fee, i.e., an amount more than the party agreed to pay its attorney, is fundamentally contrary to the purposes behind Rule 82, and would represent a marked departure from the policy behind that rule. As indicated above; however, that does not mean a Rule 82 award in this case could not exceed the product of the hours worked and the attorneys' hourly rates. In determining the value of the services under Step 1, the trial court may take into account the same policy considerations the class representatives advance in seeking a Rule 82 award exceeding the hourly basis calculation. The need to promote the efficient use of court resources via class action litigation and the potential difficulty of attracting capable counsel are some of the relevant factors a trial court might consider in evaluating the services in Step l. We note, however, that a trial court could also conclude that the potential for recovering money damages may provide capable attorneys sufficient incentive to bring a case which happens to end without entry of a money judgment. Further, we previously observed that "generally, full compensation at a reasonable rate per hour will prove adequate to encourage appropriate public interest litigation." Thomas v. Bailey, 611 P.2d 536, 541 (Alaska 1980). The trial court apparently based its denial of the class representatives' motion for an enhanced fees award on a belief it did not have discretion to consider risk enhancement under Rule 82. Because risk enhancement is a factor which could have been considered at Step 1 of the fee calculation, and because we conclude that the trial court should analyze the fee issue using the model suggested above, it is necessary to remand this issue. 2. Common fund analysis The retirees offer the common fund doctrine as one method for achieving an enhanced fee award. They argue that the common fund analysis applies here because their lawyers preserved a common fund equal to the present value of the retirees' medical benefits package. The retirees request that the value of the common fund determine the amount of the fees, but that MOA be their source. Under the common fund doctrine, "a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole." Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). In our recent decision of In re Estate of Brandon, 902 P.2d 1299 (Alaska 1995), we discussed with approval the corn-mon fund doctrine. Id. at 1319 n. 23 (involving multiple tort claimants potentially benefited by the efforts of the parties' different attorneys). We have now squarely adopted this doctrine in Edwards v. Alaska Pulp Corp., 920 P.2d 751, 754-56 (Alaska 1996). As we held in Edwards, the common fund doctrine and Rule 82 have fundamentally different, but reconcilable, purposes: the former is a fee-sharing rule, and the latter is a fee-shifting rule. Id. at 755-56. Both principles can apply in an appropriate case, where the common fund doctrine determines the fees that benefited class members owe their attorneys, and Rule 82 determines what part of those fees should be shifted to the losing party. The proper case is one where the value of the attorney's services is not contractually specified and the trial court must calculate that value in Step 1 of the model discussed above. Even though that value could not properly be directly assessed against the losing party under Rule 82, the separate Step 2 analysis would potentially permit part of the value of those services to be shifted to the losing party under Rule 82. MOA argues, however, that the common fund doctrine does not apply here because no common fund was recovered. In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 625-26, 24 L.Ed.2d 593 (1970), the United States Supreme Court held that the absence of a monetary recovery "does not preclude an award based on [the common fund] rationale." Mills involved a fee award to be paid by the defendant corporation in a successful stockholder derivative action. The Court stated: The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the fees could be paid does not preclude an award based on [the common fund] rationale. Although the earliest cases recognizing a right to reimbursement involved litigation that had produced or preserved a "common fund" for the benefit of a group, nothing in these cases indicates that the suit must actually bring money into the court as a prerequisite to the court's power to order reimbursement of expenses. Id. In Hall v. Cole, 412 U.S. 1, 5 n. 7, 93 S.Ct. 1943,1946-47 n. 7, 36 L.Ed.2d 702 (1973), the Court reiterated this holding in context of an action by a union member challenging his expulsion from the union, stating: [I]n Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), we held that the rationale of these cases must logically extend, not only to litigation that confers a monetary benefit on others, but also to litigation "which corrects or prevents an abuse which would be prejudicial to the rights and interests" of those others. Id. (citing Mills, 396 U.S. at 396, 90 S.Ct. at 627-28). The superior court stated that Mills and Hall could be distinguished from the present case, and held that "the lack of a money judgment combined with the problem of determining the actual value of the judgment precludes this court from applying the common fund theory." Citing Alaska Civil Rule 23.1(j), the superior court stated that "Mills can be distinguished in that Alaska law provides for reasonable attorney's fees in derivative actions by shareholders." In our view, Mills cannot be distinguished on this basis, as the Supreme Court did not narrowly found its analysis of this issue on the derivative posture of Mills, as evidenced by its expansion of its holding in Hall. Likewise, the fact that Hall did not "invoke class action considerations" did not make it distinguishable. We hold that the absence of a traditional fund does not preclude application of the common fund rationale in the appropriate case. We need not consider whether a common fund rationale would be applicable in every case in which no fund is recovered. In this case, it is appropriate to apply the rationale during Step 1, when the attorneys' services are evaluated. In Edwards, we held that trial courts have discretion to choose between the lodestar and percentage of the common fund methods in deciding reasonable fees under the common fund doctrine. Edwards, 920 P.2d at 758. Both of those methods may yield fees exceeding fees calculated on a strict hourly basis. In this case, any difficulty in calculating the value of the common benefit may make the percentage approach inappropriate. Nonetheless, that would not make the common fund or common benefit analysis altogether inappropriate, because other evaluation methods, such as a lodestar formula, are available. Finally, MOA claims Moses v. McGarvey, 614 P.2d 1363 (Alaska 1980), supports MOA's position that the common fund theory does not support a greater-than-actual fee award. MOA apparently regards the product of the hours spent and the usual hourly rate to be retirees' "actual" fees. As we intimated above, this view is incorrect, because the "actual" fees are those the clients agreed to pay their attorneys. Because these plaintiffs agreed to pay whatever the court awarded, their "actual" fees are not necessarily limited to fees calculated on a strict hourly basis. Neither Moses nor Rule 82 prevents the trial court on remand from awarding fees greater than those calculated on an hourly basis in this case. Therefore, we hold that the trial court may apply the common fund doctrine in calculating fees under Step 1 on remand. 3. Requiring retirees to contribute to their attorney's fees The class representatives alternatively asked the trial court to require all class members to contribute to the "risk factor" portion of class counsel's fees exceeding the fees assessed against MOA under Rule 82. The unnamed class members apparently had no prior formal notice of this request. The record does not clearly establish whether this request was consistent with the terms of the class representatives' fee agreement with counsel. For sake of this discussion, we assume it was. The trial court rejected this request because the entire class had not approved this procedure, and because "it would be quite cumbersome to administer, and has no legal support either in case law or legislative history." The class representatives argue on appeal that if MOA is not ordered to pay enhanced fees, all class members should be "allowed" to share the value of their attorneys' services on a variation of the common fund doctrine. When litigation bestows a benefit upon a class, the propriety of spreading the litigation costs among those benefited is well established. See, e.g., Boeing, 444 U.S. at 478, 100 S.Ct. at 749 ("[PJersons who obtain the benefit of a lawsuit without contributing to the costs are unjustly enriched."). Due process concerns attendant to assessing fees against absent class members when a suit is unsuccessful do not arise when a class action creates a fund from which costs can be reimbursed. Federal Practice and Procedure § 1803, at 505; 3 Herbert B. Newberg, New-berg on Class Actions § 14.03, at 14-2 through 14 — 3 (3d ed. 1995). Newberg states: These self-appointed champions of the class, and their counsel, are not entitled to charge absent class members for reimbursement of attorneys' fees or litigation expenses if the class suit is unsuccessful. . When, however, the class action successfully recovers a fund for the benefit of a class or when nonparties to the suit will share in those monies, it is long settled, based largely on windfall and unjust enrichment principles, that the attorneys who created that class recovery are entitled to be reimbursed from the common fund for their reasonable litigation expenses, including reasonable attorneys' fees. Id. Precedent exists for class contributions to fees from benefits created or protected by a class action. See, e.g., Yvonne W. Rosma-rin & Daniel A. Edelman, Consumer Class Actions, A Practical Litigation Guide § 15.1.2, at 143-44 (3d ed. 1995) ("[I]n a successful action to construe a standard form insurance policy to provide . greater . benefits . it could be argued that fees should be awarded against the company . because . the company has the ability to pass on the expense among the benefitted class in the form of higher premiums." (citing Cosgrove v. Sullivan, 759 F.Supp. 166, 169 (S.D.N.Y.1991) (fees to be paid by deducting one percent from all Medicare benefit payments disbursed by the Department of Health and Human Services pursuant to the judgment))). Therefore, a trial court could conclude that class members should be required to pay something for the benefit they have received as a result of the attorneys' efforts, assuming the class's Rule 82 award is less than the value of the services contractually agreed upon or calculated in Step 1 when that procedure applies. On remand, the trial court in its discretion may permit further argument and consideration of this issue. IV. CONCLUSION For the reasons discussed above, we REVERSE IN PART and AFFIRM IN PART the superior court's September 3, 1993 and March 14, 1994 judgments, and REMAND the attorney's fees issue. MOORE, C.J., not participating. .The APDEA disaffiliated from the Teanjsters and directly negotiated the July 1980 to October 1982 contract with MOA. Entering these negotiations, MOA's goal was an agreement for post-retirement medical benefits less extensive than those of the Teamsters and more closely aligned with MOA's Public Employees Retirement System (PERS). Bill Smith (a different person than plaintiff William Smith) became MOA's labor negotiator in November 1980. During negotiations with Fred Dichter, APDEA's labor negotiator, MOA proposed the following provision: Amend the existing agreement (Article XIX) to provide that, effective January 1, 1981, the Municipality shall provide medical coverage for all retirees from the Anchorage Police Department. Major medical coverage including coverage for audio and visual, but excluding dental coverage, will be provided. In response, APDEA proposed the following change to the last sentence: Major medical coverage including coverage for audio, visual and dental will be provided. This provision will remain in effect in this and all subsequent agreements. Coverage under this provision may not be diminished. (Emphasis added.) MOA rejected this language because it would have locked in the level of medical benefits in perpetuity. The language contained in the July 1980 CBA was the parties' compromise. . The APDEA received dental coverage beginning with its 1982 CBA. . The history of the IAFF agreements differs slightly from that of the APDEA agreements, although MOA attempted to keep the firefighters' retirement medical benefits nearly identical to those given the police officers. A December 12, 1977 agreement provided the first post-retirement medical benefits given to IAFF members. This agreement was "Administrative Letter #2," an amendment to an existing agreement. It stated: Those employees who retire after January 1, 1978 may participate in the reduced level post retirement medical benefits plan costing $63.61 which they will pay to the Municipality. The rate is guaranteed for the 1978 benefit year. In March 1980, the parties agreed to change the contract to require MOA to pay for the medical coverage. "Benefits under the plan are the same as those provided under Administrative Letter # 2 dated December 12, 1977, and will not be diminished during the term of this agreement, except by mutual agreement." The IAFF CBA effective January 1981 adopted the post-retirement medical benefits provision contained in every subsequent IAFF CBA. . MOA also argues that the trial court erred in awarding full "actual" attorney's fees to the retirees. MOA asserts in its appellee's brief in S-6305, the appeal commenced by the Gentile parties, that it has cross-appealed from the award of attorney's fees. However, our files contain no such cross-appeal. MOA filed a motion to supplement its appellate points with the attorney's fees issue in S-5965, the appeal in which MOA was the appellant, but MOA did not file that motion until after briefing in that appeal was already complete. (Argument in S-5965 preceded argument in S-6305 by four months.) These two appeals were briefed and argued separately. We have issued a single opinion because the two appeals share a common legal origin and factual foundation, even though they arise out of separate judgments. We denied MOA's motion to supplement its points on appeal in S-5965, but our order stated that "upon receipt of the documents required by AR 204(b), the issues Appellant [MOA] raised in the supplemental points on appeal will be treated as a cross-appeal in S-6305." (Emphasis added.) MOA did not file the documents required by that order and consequently failed to perfect and preserve its would-be cross-appeal. See also infra note 26. . In Wright v. Vickaryous, 598 P.2d 490, 497 n. 22 (Alaska 1979), we noted that we do not require a preliminary finding of ambiguity before evaluating extrinsic evidence. . Relying on Bidlack v. Wheelabrator Corp., 993 F.2d 603, 606-07 (7th Cir.), cert. denied, 510 U.S. 909, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993), MOA argues that a presumption exists against the vesting of post-retirement medical benefits. In Bidlack, the Seventh Circuit, sitting en banc, seems to have limited the strong anti-vesting rule enunciated in Senn v. United Dominion Indus., 951 F.2d 806 (7th Cir.1992), cert. denied, 509 U.S. 903, 113 S.Ct. 2992, 125 L.Ed.2d 687 (1993). The retirees argue that if any presumption applies it should be a pro-vesting presumption, citing such cases as International Union, UAW v. Yard-Man, Inc., 716 F.2d 1476, 1482 (6th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984). In Yard-Man, the Sixth Circuit applied a pro-vesting presumption, reasoning that the context in which the collective bargaining agreement was negotiated, and the fact that retirees are not subject to mandatory bargaining during collective bargaining, create an inference that the parties intended retiree medical benefits to vest. Id. . In Peterson we listed the following types of evidence that could be useful: [T]he language and conduct of the parties, the objects sought to be accomplished and the surrounding circumstances at the time the contract was negotiated.... The conduct of the parties after the contract was entered into is generally considered to be admissible as a probative extrinsic aid to determining the intent of the parties when they made the contract. 625 P.2d at 870 n. 7. . MOA argues that it was clear error to deny its motion to divide the class. Because MOA fails to develop this argument, we consider it to have been waived. Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991). We also note that the parties stipulated that the legal issues in this case were common to the APDEA and IAFF CBAs. . MOA argues that Dichter's testimony "actually shows that the parties most assuredly did not have that intent." It argues that Dichter's testimony "endorses the Municipality's position that there was no mutual intent to guarantee retiree medical benefits coverage beyond the term of the [CBA]." MOA cites to only a small portion of Dichter's testimony. Other passages clearly support the retirees' position. When asked whether the language in the medical benefits section was intended to freeze benefit levels for police officers who had already retired, he replied "yes." We defer to the finding of the trial court which heard the testimony and observed the demeanor of the witnesses, including Dichter. Crook v. Mortenson-Neal, 727 P.2d 297, 302 (Alaska 1986). MOA also urges us to "give no credence to Dichter's research conclusion." Although we do not accept the research conclusion as legal grounds for our opinion, we accept the trial court's finding that Dichter reached a conclusion which he communicated to the MOA negotiator. . MOA relies on the testimony of Smith, MOA's chief negotiator, that MOA did not intend the CBA to vest benefits. It also argues that the testimony of former Mayor Sullivan and Emily French, MOA's chief negotiator under Mayor Knowles, supports a conclusion that MOA did not intend post-retirement medical benefits to vest. . MOA apparently considers that case particularly instructive because it involved a witness who was not present at contract negotiations. We did not base our holding on that fact, however, and instead relied on his demonstrated lack of nonspeculative, first-hand knowledge. Norton, 677 P.2d at 881. . The court explicitly gave additional weight to their testimony because of [t]heir demeanor; the clarity of their recollections; their training as former Public Safely officers to be careful, responsible witnesses; the importance of these conversations to the retirees, who were thus more likely to remember them; and the consistency of the testimony with all or parts of the testimony of MOA employees Pam Barbeau, Chuck Shelton, Carol Watts. . The trial court also held that by diminishing the medical benefits, MOA violated article XII, section 7 of the Alaska ^Constitution. Because the class members' contract claim fully resolves the question of whether the medical benefits vested when the covered employees retired, it is unnecessary to consider claimants' constitutional claim. . MOA does not argue mistake of fact. When the Assembly passed ACO 77-257 it understood that it was taking on an "open-ended" commitment. The cost estimates varied from $450,000 to $3,450,000, and the Assembly was informed that the estimates were based on nothing more than guesses at the projected rise in health care costs. We must presume that in accepting the CBAs the Assembly was aware of what it was voting on and the financial implications of its actions. See Property Owners Assn v. City of Ketchikan, 781 P.2d 567, 572 (Alaska 1989) (holding city council's legislative decisions presumed correct). MOA has presented no evidence that would indicate otherwise. . In that case we quoted an Arizona Supreme Court opinion that recognized several public policy arguments warranting application of the tort. It stated: We are persuaded that there are sound reasons for recognizing the rule announced in Gruen-berg [v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal. Rptr. 480, 485, 510 P.2d 1032, 1037 (Cal. 1973)]. The special nature of an insurance contract has been recognized by courts and legislatures for many years. An insurance policy is not obtained as protection against calamity. In securing the reasonable expectations of the insured under the insurance policy there is usually an unequal bargaining position between the insured and the insurance company.... Often the insured is in an especially vulnerable economic position when such a casualty loss occurs. The whole purpose of insurance is defeated if an insurance company can refuse or fail, without justification, to pay a valid claim. We have determined that it is reasonable to conclude that there is a legal duty implied in an insurance contract that the insurance company must act in good faith in dealing with its insured on a claim, and a violation of that duty of good faith is a tort. Id. at 1155 (citations omitted) (quoting Noble v. National Am. Life Ins. Co., 128 Ariz. 188, 624 P.2d 866, 867-68 (1981)). . This proposal was based on a percentage of the benefits at stake — allegedly worth $28 million — under a common fund theory. Retirees noted that at rates up to $195 per hour, the hourly fees would have been $342,531. They proposed alternative awards, the smallest of which was $1,027,593, using the hourly fees as a lodestar with a multiplier of three. They argued that the award should include a risk premium, and should be paid by MOA. The class representatives proposed alternatively that $1,462,531 be paid their attorneys, $1,120,000 of which would be a "risk factor" and would ultimately be contributed by the class members themselves. . The fees decision was entered June 1, 1994. Because both sides filed their fees motions after amendments to Rule 82 became effective on July 15, 1993, the trial court should have applied the amended rule. Instead, the trial court applied the prior version of Rule 82. The 1993 amendments added eleven specific and general criteria a trial court might employ in deviating from an award calculated under Rule 82(b)(1) or Rule 82(b)(2). Alaska R.Civ.P. 82(b)(3). The former rule applied by the trial court permitted it to award fees based on, among other things, the value of services provided. We analyze the retirees' appeal under the amended rule. .As one fee award alternative, however, class counsel reserved the right to seek fees from the class members pursuant to a common fund award that would have resulted in slightly reduced benefits to the class over time. .We have recognized limited exceptions to the partial compensation purpose of Rule 82 when the losing party has engaged in frivolous or bad faith litigation tactics, State, Dep't of Revenue v. Allsop, 902 P.2d 790, 795 (Alaska 1995), or one party is a public interest litigant which may recover full reasonable fees if it is the prevailing party, but is not liable for a fee award if it is not the prevailing party. Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d 420, 422 (Alaska 1995); Hickel v. Southeast Conference, 868 P.2d 919, 923 (Alaska 1994). These exceptions do not apply here. . In cases where the attorney charges no fee or a lower than usual fee, however, the proper approach is to value the attorney's services and to make a Rule 82 award which is some fraction of this value. Arctic Slope Native Ass'n v. Paid, 609 P.2d 32, 38 (Alaska 1980). . Thus, for illustration purposes only, assuming the court were to decide in Step 1 the value of the services was $1,200,000, and in Step 2 that under Rule 82 the class should be awarded forty percent of the value of the attorney's fees, the award against MOA would be $480,000. Per the retention agreement, the class representatives would pay counsel the $480,000. . Our holding here does not preclude a court from shifting fees greater than those agreed to by an attorney charging no fees or lower than usual fees. See discussion of Arctic Slope Native Ass'n, supra note 20. . The trial court noted that the parties disagree about the value of the judgment to the class. On remand, the trial court may require further argument on this issue and factor this dispute into its calculation of the reasonable fees. . One court has stated that "it is not the function of judges in fee litigation to determine the equivalent of medieval just price. It is to determine what the lawyer would receive if he were selling his services in the market rather than being paid by court order." In re Continental Ill. Sec. Litig., 962 F.2d 566, 568 (7th Cir.1992) (Posner, J.) (reversing trial court fee award to class action counsel where the trial court refused to award a risk multiplier). .The retirees also sought additional tort and contract damages. Had they obtained a damages award, their attorneys presumably would have shared in part of that award. A court might conclude that the attorneys took the risk that they would be unsuccessful in all or part of this case in exchange for a chance at a large contingent fee recovery under a common fund analysis, and that awarding a risk premium is not needed to encourage competent counsel to accept similar class action cases in the future. As was done here, class representatives or counsel may offer affidavits asserting that it would be difficult or impossible to obtain other capable counsel absent the potential recovery of enhanced fees. Although the actual difficulty experienced by class representatives in retaining counsel is probative, a court need not unquestioningly accept assertions that absent enhanced fees, capable counsel could not have been retained, or cannot be obtained in the future. Such assertions are potentially speculative and self-serving. . MOA asserts that it has cross-appealed from the fee award, and that the court erred in failing to apportion fees by issue and in awarding full fees under Rule 82. However, MOA failed to properly raise and perfect its cross-appeal. See supra note 4. Jackson v. Nangle, 677 P.2d 242, 247 n. 3 (Alaska 1984); Alaska Brick Co. v. McCoy, 400 P.2d 454, 457 (Alaska 1965). We have therefore considered only the fees issues retirees have raised. The fact circumstances on which MOA would rely in its unpreserved attorney's fees appeal may be relevant on remand when the trial court revisits the retirees' enhanced fees request. . The class representatives proposed that these contributions be funded by requiring MOA presently to advance $1.12 million to be paid class counsel as a "risk factor," and permitting MOA to recover this amount by making minor deductions from the retirees' future benefit payments. . We are mindful of the potential lack of adversity when class counsel asks the trial court to impose fees on the benefited class members under the common fund doctrine. Possible solutions include appointment of masters to decide fact'issues or "special counsel" to represent the class and negotiate the fees issue with plaintiffs' counsel. In re Continental Ill. Sec. Litig., 962 F.2d 566, 573 (7th Cir.1992) (suggesting that the trial court could, absent an adversarial presentation, appoint a special master to assess objective criteria of cost and performance); Christopher P. Lu, Procedural Solutions to the Attorney's Fee Problem in Complex Litigation, 26 U.Rich.L.Rev. 41, 62-63 (1991) ("special counsel"). It seems likely that in most disputes in which a trial court may award fees to the prevailing parties under Rule 82, the losing party will have ample incentive and standing to dispute the amount of fees to be calculated during Step 1.

10330632

Robert W. GROFF and Anna Groff, Appellants, v. John P. KOHLER, Barbara E. Kohler, Martin E. Horn, Sandra S. Horn, And Alaska State Employees Federal Credit Union, Appellees

Groff v. Kohler

1996-08-02

No. S-6300

870

877

922 P.2d 870

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Robert W. GROFF and Anna Groff, Appellants, v. John P. KOHLER, Barbara E. Kohler, Martin E. Horn, Sandra S. Horn, And Alaska State Employees Federal Credit Union, Appellees.

Robert W. GROFF and Anna Groff, Appellants, v. John P. KOHLER, Barbara E. Kohler, Martin E. Horn, Sandra S. Horn, And Alaska State Employees Federal Credit Union, Appellees. No. S-6300. Supreme Court of Alaska. Aug. 2, 1996. Barry Donnellan, Fairbanks, for Appellants. Brett M. Wood, Fairbanks, for Appellees. Before RABINOWITZ, MATTHEWS, COMPTON, EASTAUGH and FABE, JJ.

4038

24231

OPINION COMPTON, Justice. I. INTRODUCTION Robert and Anna Groff (the Groffs) seek to reform a deed to property that they sold to John Kohler and his business associates (Kohler). The Groffs claim that despite the clear intent of the parties to the transaction, an easement was mistakenly omitted from the deed. The superior court ruled against the Groffs in their suit to reform the deed, and they appeal. We affirm. II. FACTS AND PROCEEDINGS The Groffs owned six contiguous lots in Fairbanks, bounded by Cushman Street on the west, Ninth Avenue on the north, and Tenth Avenue on the south. On lots one and two, the Groffs built a commercial office building addressed as 901 Cushman. On lot three they built a second office building addressed as 911 Cushman. Lots 5 and 6 also contain structures, and lot 4 is vacant. In 1988 the Groffs and John Kohler entered into discussions concerning Kohler's establishment of an insurance business in the building on lots one and two. Although Koh-ler's purchase of the property was briefly discussed, and the parties signed an earnest money agreement (EMA), in the end they agreed that Kohler would lease the property for thirteen months. The EMA stated: "Driveways are a common area for 901 and 911 Cushman and 540 10th and 541 9th." After the lease expired, Kohler agreed to buy the property, and the parties signed a second EMA which also contained this "common driveways" clause. The Groffs intended the "common driveways" clause to create two easements needed to facilitate traffic flow through their property and allow sufficient parking for their building at 911 Cushman. Traffic from Cushman Street enters the lots by means of a driveway which straddles the south end of lot two and the north end of lot three. Consequently, the Groffs desired an easement over the relevant portion of lot two. Additionally, the Groffs dedicated parking spaces on lot four to the office building at 911 Cushman, in order to comply with Borough zoning regulations regarding off-street parking. They claim that exit from these parking spaces can only occur by use of the driveway which is located along the east edge of lots one and two and opens onto Ninth Avenue. Accordingly, the Groffs also intended their sale of the property to be subject to an easement over the east edge of lots one and two. The sale of lots one and two was closed by the TransAlaska Title Insurance Company ("TransAlaska"). Although TransAlaska's office manager testified at trial that the language of the deed was taken from the EMA, the EMA's "common driveways" clause did not make its way into the deed. TransAlas-ka first prepared a deed that contained no reference to easements. Anna Groff then requested that a change be made, and the deed was amended — but only to provide that the conveyance of the property from the Groffs to Kohler was "SUBJECT TO AN EASEMENT FOR INGRESS AND EGRESS OVER, ACROSS AND UPON THE COMMON DRIVE AS IT EXISTS ON Lots 2 and 3." TransAlaska's office manager testified that a "clerical error" resulted in the omission of the description of an easement over the east side of lots one and two. Anna Groff signed the deed, without recognizing that it did not mention an easement over the driveway onto Ninth Avenue across lots one and two. Mrs. Groff also signed an acknowledgement of Title Report, which stated that she approved the legal description contained in the deed. A year later, Kohler decided to move his business to a larger building, and he entered into negotiations with the Alaska State Employees Credit Union ("the Credit Union") to sell lots one and two. The Credit Union requested a definition of the width of the easement between lots two and three, which was mentioned in the deed. This prompted Bruce Wammack, Kohler's real estate agent, to contact the Groffs in an attempt to reach an agreement regarding the dimensions of that easement. The Groffs expressed surprise and concern that the deed did not contain an easement across the east side of lots one and two. Kohler was surprised by the Groffs' claim of an easement, but was willing to recognize the easement across lots one and two as long as the Credit Union would purchase the property subject to that burden. The Groffs asked Wammack to supplement the document he had prepared to record the dimensions of the lot two/lot three easement with a provision stating that an easement also existed over lots one and two. Wammack drafted the document (referred to by the litigants as "the Agreement") with the understanding, shared by Kohler, that its validity was conditioned on its acceptability to the Credit Union. Kohler and the Groffs signed the Agreement, but it was never recorded. The title agency that closed the Kohler/Credit Union sale destroyed the document after learning that the Credit Union would not accede to it. The day after the signing of the Agreement, the Groffs, Kohler, and a Credit Union representative met on the property in an attempt to settle the dispute regarding the lot one/lot two easement. The Credit Union would not agree to an easement across the east portion of the property. Thus when the Kohler/Credit Union sale was closed immediately thereafter, the Credit Union received a deed with the same language as Kohler's: it spoke only of the lot two/lot three easement. Additionally, Kohler agreed to indemnify the Credit Union for any damages that might ensue from the Groffs' claim that an easement existed. At some point after the problem was discovered, the Groffs contacted TransAlaska, whose manager agreed that since Kohler's deed was based on the EMA, it should have included a description of an easement over the eastern portion of lots one and two. TransAlaska prepared a corrected deed, which the Groffs initialled and brought to Kohler. Kohler refused to sign, however, as he had already conveyed the property to the Credit Union. The Groffs subsequently filed suit seeking reformation of the deed. They testified that both they and Kohler had intended to create an easement over the lot one/lot two driveway. In support of their contention, they cited the EMA's "common driveways" clause, and the never-recorded Agreement between themselves and Kohler. Kohler testified that he had always understood the Groffs' need for the lot two/lot three easement mentioned in the deed, but said that he "knew nothing about" an easement across the Ninth Avenue driveway on lots one and two until the Groffs raised the subject shortly before his sale to the Credit Union. Kohler claimed that he did not know what the "common driveways" clause in the EMA meant, and his testimony generally indicated that he had never given the issue much thought. He did allow during cross-examination, however, that the language of the "common driveways" clause seemed to mean that "everybody can use every driveway." Kohler's testimony indicated that, even at trial, he failed to understand the importance the Groffs attached to that driveway. He thought that the parking spaces next to the planter box were on his property, so he failed to appreciate the Groffs' need for an easement that would allow people parking in those spaces to exit onto Ninth Avenue. Additionally, Kohler disputed the Groffs' account of how traffic moved through the property. He testified that there were three or four possible ways of exiting at the rear of the property; that the Cushman curb cut was used for both ingress and egress; that the Ninth Avenue curb cut was infrequently used; and that "the majority of people [who parked on the property] would exit on 10th Street." He therefore disputed their account of the "missing easement's" importance. The court observed that reformation of a deed is proper when necessary to reflect the actual intentions of the parties, and that the Groffs had the burden of demonstrating by clear and convincing evidence that the easement had been omitted from the deed through a mutual mistake. The court found no mutual mistake that justified reformation; it was "not convinced that it was [Kohler's] intent to provide for an easement [across the east side of lots one and two]." This conclusion stemmed from the court's factual findings that Mr. Kohler incorrectly believed that the [six] parking [spaces on the west side of Lot 4 were] on his property [lots one and two], therefore he did not understand the Groffs' need for an easement across Lots 1 and 2. Additionally, in Kohler's experience, the driveway was not used very much. Mr. Kohler relied on the language of the deed and believed that it reflected the parties' intent.... Consequently, the court declined to reform the deed or to grant the Groffs damages. The Groffs appeal. III. DISCUSSION A. Introduction As a general rule, rights under a contract to convey property are merged into a subsequent deed and thereby extinguished. See South Utsunomiya Enters. v. Moomuku Country Club, 75 Haw. 480, 866 P.2d 951, 968 (1994); Scott v. Curtis, 103 Or.App. 389, 798 P.2d 248, 250 (1990); see generally 2 Milton R. Friedman, Contracts and Conveyances of Real Property § 7.2, at 887 (5th ed. 1991). Execution and delivery of a deed by the seller . usually constitute full performance on his part, and acceptance of the deed by the buyer manifests his acceptance of that performance even though the estate conveyed may differ from that promised in the antecedent agreement. Therefore, in such a case, the deed is the final agreement and all prior terms, whether written or verbal, are extinguished and unenforceable. Stubbs v. Hemmert, 567 P.2d 168, 169 (Utah 1977) (footnote omitted). However, merger does not occur in cases where "through fraud or relievable mistake the grantee has been induced to accept something different from what the contract required." Scott, 798 P.2d at 250 (quotation omitted). Professor Corbin has observed: The doctrines of "merger" or "estoppel by deed" have never prevented the reformation of a deed in which the words of description or of conveyance fail to describe correctly or to convey the land or interest that was agreed upon. 3 Arthur L. Corbin, Corbin on Contracts § 604, at 631 (1960). In line with this authority, we have previously held: Reformation of a writing is justified when the parties have come to a complete mutual understanding of all the essential terms of their bargain, but by reason of mutual mistake . the written agreement is not in conformity with such understanding.... AMFAC Hotels v. State, Dep't of Transp., 659 P.2d 1189, 1192 (Alaska 1983), overruled on other grounds by Atlantic Richfield Co. v. State, 723 P.2d 1249, 1252 (Alaska 1986). B. Were the Lower Court's Findings Regarding Reformation Erroneous? 1. Standard of review The trial court in this case correctly noted that the party seeking to avoid merger bears the burden of establishing, by clear and convincing evidence, that the instrument does not conform to the intent of the parties. Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989); see also Embassy Group v. Hatch, 865 P.2d 1366, 1371-72 (Utah App. 1993) (citing Mabey v. Kay Peterson Constr. Co., 682 P.2d 287, 290 (Utah 1984)). Whether "the evidence does establish the existence of a prior agreement" that justifies the reformation of an instrument "is a question of fact," and will be reversed on appeal only if clearly erroneous. AMFAC Hotels, 659 P.2d at 1192. We will deem such a lower court finding clearly erroneous only when we are " 'convinced, in a definite and firm way, that a mistake has been committed.' " Id. at 1192-93 (citations omitted). 2. The finding that there was no mutual mistake justifying reformation was not dearly erroneous. As the trial court noted, reformation is available to the Groffs if they can demonstrate, by clear and convincing evidence, that the easement over lots one and two was omitted from the deed because of mutual mistake. Mutual mistake in relation to reformation means a mistake shared by both parties . The mistake cannot be mutual if the minds of the parties to the instrument did not meet in a common intent.... [T]he evidence of the mutuality of mistake must relate to the time of the execution of the instrument, and show that at that particular time the parties intended to say a certain thing and by mistake expressed another. Shoulderblade v. Osborn, 60 Or.App. 12, 652 P.2d 836, 838 (1982) (citing Frick v. Hoag, 277 Or. 135, 559 P.2d 879, 881-82 (1977)) (quotations omitted). Therefore, as we have previously explained, a party will be able to obtain reformation of an instrument only if that party can clearly and convincingly show that "both parties [had] an identical intention as to the terms to be embodied in [the] proposed written conveyance . and [the] writing executed by them is materially at variance with that intention." Martin v. Maldonado, 572 P.2d 763, 768 n. 12 (Alaska 1977) (citing Restatement of Contracts § 504 (1943)) (emphasis added). The Groffs offer a three-part argument in an attempt to demonstrate that Koh-ler shared their intent to create a lot one/lot two easement: (1) they point out that Kohler signed the EMA's and emphasize his trial testimony that the plain language of the EMA's indicated that "everyone can use every driveway;" (2) they observe that the title company that drew up the deed did so by referencing the EMA; (3) they conclude that Kohler intended that the deed provide for an easement over the driveway along the eastern edge of lots one and two. As Kohler notes, "in substance [the Groffs] argue that these facts, standing alone as a matter of law, establish what [Kohler's] intention was." Kohler rejects the contention that his statement concerning the "common driveways" clause in the EMA inexorably leads to the conclusion that when he signed the deed he intended to reserve an easement across lots one and two. He asserts that there was ample evidence to support the trial court's decision to the contrary, and notes that the lower court's ruling was based on its evaluation of the credibility of the witnesses — a task within the exclusive domain of the trial judge. Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988). We conclude that the Groffs have not shown the trial court's factual findings to be clearly erroneous. The Groffs were required to prove by clear and convincing evidence that Kohler actually intended that the easement be reserved when he accepted the deed. Oaksmith, 774 P.2d at 197; Shoulderblade, 652 P.2d at 838. Kohler's testimony at trial, which the trial court accepted, contradicted this contention. While we might have reached a different conclusion than the trial court, we cannot say that its decision was clearly erroneous. 3. Was reformation required by "the interests of justice"? The Groffs also argue briefly that reformation is justified under a principle set forth in Fireman's Fund Mortgage Corp. v. Allstate Ins. Co., 838 P.2d 790 (Alaska 1992): [W]e have also recognized a more expansive use of the tool of reformation to allow our courts to alter the terms of a contract when the interests of justice so require. Id. at 797 (citing Vockner v. Erickson, 712 P.2d 379 (Alaska 1986)). The Groffs contend that they will suffer more than $260,000 in damages if they cannot obtain a lot one/lot two easement. They argue that under such circumstances, reformation is required under Fireman's Fund. This argument is not mentioned in the trial court's opinion, because the Groffs did not raise it below. They gave testimony regarding damages, but did not argue, as they do here, that because they would allegedly suffer these damages, they should be granted reformation of the deed. To the contrary, they claimed in their complaint that they were entitled to those damages "[i]n the event that reformation cannot be had." (Emphasis added). Neither in opening nor in closing arguments did the Groffs contend that the testimony regarding damages supported their claim for reformation. Since the Groffs' Fireman's Fund argument was not raised below, it cannot be pursued on appeal. IV. CONCLUSION While some testimony at trial supported the Groffs' argument that Kohler intended to create an easement across lots one and two, other portions of testimony contradicted this claim. That the lower court decided to give more credence to the latter testimony cannot be termed clearly erroneous. We therefore affirm the lower court decision. MOORE, C.J., not participating. . The second EMA added the abbreviation "Ave." at the end. In an apparent typographical error, the November 1994 stipulation between the parties as to undisputed facts reproduced this language but replaced "9th" with "11th." . The spaces on lot four are located on the west side of a "rock wall" (also referred to at trial as a "planter box"). . Wammack claimed the Groffs were aware of this fact, but the Groffs testified to the contrary. The trial court made no findings on this issue. . The court correctly held that reformation is generally available only in cases of mutual mistake. As the court explained, reformation is also available in a case of unilateral mistake if the non-mistaken party to the transaction knew of the mistake. That exception was held inapplicable here, however, because the court found that Kohler "did not know [that] the Groffs' intention was to include an easement along the eastern portions of Lots 1 and 2." . See also Restatement of Contracts (Second) § 155 cmt. a (1979) ("[R]eformation is available when the parties, having reached an agreement and having then attempted to reduce it to writing, fail to express it correctly in the writing.") (emphasis added). . In determining the intent of the parties who signed the deed, the trial court was not constrained to focus on the EMA to the exclusion of all other evidence. See, e.g., Janke v. Beckstead, 8 Utah 2d 247, 332 P.2d 933, 935-36 (1958) (reforming deed based on testimony and actions of parties, even though language of deed accurately reflected contract of sale); Neal v. Green, 71 Wash.2d 40, 426 P.2d 485, 487-88 (1967) (reforming deed based on examination of EMA, witness testimony and demeanor, corroboration from contemporary records, and parties' subsequent conduct). Indeed, to focus solely on the language of the EMA would have been an errant approach to the inquiry, since the court's task was to determine the parties' intent at the time the deed was executed. Shoulderblade, 652 P.2d at 838. . In their opening argument, the Groffs' counsel merely paraphrased their complaint, explaining: "If reformation is not available to the Groffs, they will argue that they have sustained damages." The whole of the Groffs' closing argument regarding damages testimony was this statement by their counsel: I'm not going to waste time talking about the damages aspect, Your Honor. I think there's a prima facie case for reformation here but the Groffs testified about why the building would be useless if they didn't have these parking spaces because they're maxed out in their zoning for parking. And there was no testimony contradicting that whatsoever, except now that [opposing counsel] argues ["W]ell, that's not very sensible.!']

10331511

Allan Maynard HAYES, Appellant, v. Lidia Rodewald HAYES, Appellee

Hayes v. Hayes

1996-09-06

No. S-6624

896

901

922 P.2d 896

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Allan Maynard HAYES, Appellant, v. Lidia Rodewald HAYES, Appellee.

Allan Maynard HAYES, Appellant, v. Lidia Rodewald HAYES, Appellee. No. S-6624. Supreme Court of Alaska. Sept. 6, 1996. Fred W. Triem, Petersburg, for Appellant. Mary E. Guss, Ketchikan, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3021

18292

OPINION RABINOWITZ, Justice. I.INTRODUCTION Allan Hayes and Lidia Hayes were divorced in August of 1993. Allan appeals the superior court's award of custody over two children, Lexie and Isaac. He also appeals the superior court's refusal to order Lidia to repay money that she borrowed from the children's Permanent Fund Dividends. II.FACTS AND PROCEEDINGS Allan and Lidia commenced living together in the summer of 1984. They were married on June 21, 1986, and separated in March, 1992. In February of 1994, trial was held on the issues of custody of the children and property distribution. In this appeal, Allan Hayes is primarily challenging the superior court's custody determination. There are two children involved in this case. Isaac Hayes is Lidia's son and Allan's stepson and has lived with Lidia and Allan since he was three years old. He is currently fifteen years old. Although Allan apparently made some efforts to officially adopt Isaac, this never actually happened. Lexie Hayes is the daughter of Allan and Lidia. She is currently nine years old. Originally, under temporary orders, the parties shared physical custody of the two children. Lidia was to have custody of the children during the week and Allan was to have custody on the weekends. However, since Lidia had decided to move away from Wrangell, where the family had resided, the superior court's final order granted physical custody of both children to Lidia during the entire school year and to Allan during the summers and some portion of the Christmas holidays. Allan's arguments concerning the custody award are two-fold. First, he asserts that the superior court should not have required him to prove that awarding primary custody of Isaac to Lidia would be detrimental to Isaac. The superior court required him to make this showing based only on the fact that Allan is not the biological father of Isaac. His second contention is that the superior court failed to properly consider the ramifications of moving the children away from their home in Wrangell in reaching its custody decision. At trial, Lidia testified that she "borrowed" $4,000 of the children's Permanent Fund Dividends and had orally agreed with the children to repay them. Allan appeals the superior court's refusal to order Lidia to repay the $4,000 she borrowed from the two children. III.DISCUSSION A. The Superior Court's Holdings In its conclusions of law, the superior court observed: Alaska law acknowledges a preference for the biological parent in custody disputes. Turner v. Pannick, 540 P.2d 1051, 1053 (Alaska 1975). However, a non-parent may be awarded custody of a child if the non-parent can show that the parent is unfit, has abandoned the child, or that the child's welfare requires that a non-parent receive custody. Id. at 1055. In Turner, the Alaska Supreme Court held that "welfare of the child" required the non-parent to show that it would be clearly detrimental to the child to permit the biological parent to have custody. Id. at 1054. The burden of proving this detriment is on the non-parent. Britt v.Britt, 567 P.2d 308, 310 (Alaska 1977).[ ] The superior court then concluded that "Allan has not shown that placement of Isaac with Lidia during the school year will be clearly detrimental to his welfare." Allan argues that a step-parent who has borne full parental responsibilities is entitled to equal treatment in a child custody dispute with a biological parent. More particularly, Allan asks us to overrule Turner v. Pannick, 540 P.2d 1051 (Alaska 1975) (non-parent has the burden of proving that parent is unfit, has abandoned the child, or that the welfare of the child requires that a non-parent receive custody) and Britt v. Britt, 567 P.2d 308 (Alaska 1977) (non-parent has the burden of proving that parental custody would be clearly detrimental to the child). Allan's primary contention is that according a biological parent a preference over a step-parent who has not adopted the child violates the equal protection provisions of the Constitutions of both the United States and Alaska. Given the superior court's alternative findings of fact, conclusions of law, and rationale for its award of primary physical custody of the two minor children to Lidia, we find it unnecessary to address Allan's attacks on the preference heretofore accorded a parent in custody disputes with a non-parent. B. Best Interests Test The superior court concluded: If the court is wrong about the standard to be employed in this case, the same decision would be made if the best interests of the children test were employed. Although both parents are good parents and both contributed in significant ways to the betterment of their children, the court believes that a review of the statutory factors tips in favor of Lidia. Our review of the superior court's findings of fact, conclusions of law, and the record in this case persuades us that the superior court did not abuse its discretion in determining that Lidia should be awarded primary physical custody of the two children. Allan argues that the superior court erred in not properly considering the significance of Lidia's proposal to move the two children from Wrangell, where they were both raised, if she received physical custody. Allan observes that "the children have an established custodial environment in Wrangell, where they have extended family, Mends, and teachers." Allan's" contentions that the superior court did not properly consider this factor, however, is without merit. Review of the superior court's findings of fact and conclusions of law indicates that the superior court did consider the "stability and continuity both children have in Wrangell." The superior court concluded: The only other relevant factor is the stability and continuity both children have in Wrangell. The importance of this factor is clear. Evans v. Evans, [869 P.2d 478, 481 (Alaska 1994) ]. In many ways this case comes down to balancing Isaac's needs and preferences against the upset that may be caused by a new home and school. Although applying the best interests standard in the case is very difficult because both parents offer so much and the distinc tions between them are so fíne, in the end the court believes Isaac's emotional needs, his dependency on Lidia and his preference are the most important factors. The court in some ways has a safety net here. Given the maturity and ability to communicate demonstrated by these parents, if Isaac does have extreme difficulty, the court does not doubt that these parents will agree that Isaac should return to Wrangell. Finally, the court has placed great emphasis on the fact that what is at issue here is simply which parent has the children for the winter months. Allan will continue to play an important and consistent role in Isaac's life. The only real problem then is the change of schools. While this is an important concern, the court is convinced that Isaac has the intelligence to handle the transition and that the continuity and stability offered by his relationship with Lidia is more important than continuity of a geographic location or sehooll.[ ] Based on our review of the record, we hold that it was not an abuse of discretion for the superior court to decide that the importance of keeping the children in Wrangell was outweighed by other competing relevant considerations in the case. Allan's ancillary argument, that a parent seeking to move the children away from their previous home should be required to make a showing, by clear and convincing evidence, that such a move is in the children's best interests, is contrary to this court's decisions. In McQuade v. McQuade, 901 P.2d 421 (Alaska 1995), we had occasion to address the appropriate standards to be applied where one parent chooses to move out of state. In reviewing the superior court's custody determination, we alluded to our decision in House v. House, 779 P.2d 1204, 1208 (Alaska 1989): First, we considered the best interests of the children in light of the criteria in AS 25.24.150(c) and concluded that the record supported the trial court's findings that remaining in the custody of the parent who was moving would be in the children's best interests. [House, 779 P.2d] at 1208. Second, we noted that "[m]ost states permit custodial parents to move out of state with their children if there is a legitimate reason for the move." Id. We then concluded that the "decision of the family to move to [California] was based upon a valid reason, that is, a reason which was not primarily motivated by a desire to make visitation . more difficult." Id. Thus, in making a custody determination where the existing custodial parent chooses to move out of state, a court must consider the best interests of the children by applying the criteria in AS 25.24.150(c), and in so doing should consider whether there is a legitimate reason for the move. McQuade, 901 P.2d at 423-24 (footnote and citation omitted). We further stated: We have consistently avoided mandating rigid rules for making custody determinations. See, e.g., Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973) (stating that in custody matters, "there is no hard and fast rule").... [I]n the circumstance where the custodial parent desires to move out of Alaska, we consider the best interests of the child so that such determinations are based upon the facts and circumstances of each particular case. We therefore conclude that the standard set out in House is the proper standard to apply in the factual circumstance where one parent is planning to move out of Alaska. Id. at 424. Neither House nor McQuade imposed upon the parent seeking to move the children away from their previous home a requirement to show, by clear and convincing evidence, that such a move is in the children's best interests. We are not persuaded that an enhanced burden of proof, in addition to the House and McQuade criteria, should be adopted. C. Permanent Fund Dividends Allan's last argument is that it was error on the superior court's part to refuse to order Lidia to repay some $4,000 which she borrowed from her children's Permanent Fund Dividends (PFDs). At trial Lidia testified that "[t]he last two years I have taken out a loan from my kids with their dividends because I needed to pay bills." Lidia further testified that she had a verbal agreement with her children to repay them $2,000 each. During final argument, Allan's counsel requested an order "that says Permanent Funds will go into a trust fund, not to be spent in the meantime." In response to this request the superior court, in its conclusions of law, provided as follows: Allan is to apply for the. children's PFD each year that they are eligible. The PFD is to be deposited each year in an interest bearing account and held for the children. When each child reaches 18 years, the money in the account is to be turned over to the child. No money is to be withdrawn from the accounts until then. Allan then moved for reconsideration of the issue of the children's PFDs. More specifically, Allan requested that Lidia be ordered to repay the borrowed $4,000 to the children's trust account. In its order denying reconsideration the superior court stated: At the conclusion of trial, the court ordered that Mr. Hayes apply for and deposit the children's permanent fund dividends. The dividends are to be deposited in interest bearing accounts and not invaded until each child turns eighteen. Mr. Hayes has asked the court to reconsider the extent of this order. He wishes the court to order that Ms. Hayes pay back the children's permanent fund money she borrowed during the parties' separation. Ms. Hayes opposes this request. The court has considered both arguments and concludes that no modification to the original order will be made. While it is true that Ms. Hayes agreed to pay the money back, that agreement is between her and the children. Furthermore, during the parties' separation, for the peculiar reasons already explained in paragraph 22 of the Conclusions of Law dated March 22, 1994, Mr. Hayes underpaid the amount of child support actually due. Although Mr. Hayes' underpayment was not done in bad faith or intentionally, the fact remains that during the separation, Ms. Hayes paid more than her share of child care costs. Given these factors, the court will not order Ms. Hayes to payback [sic] the money. Before the superior court, Allan conceded that "Alaska law is silent or incomplete on the subject of a parent's duty to administer their children's Permanent Fund Dividend monies." In Lee v. Cox, 790 P.2d 1359 (Alaska 1990), one of the points in contention in the appeal was whether the superior court abused its discretion in ordering the mother to reimburse her son for all Permanent Fund Dividends received on his behalf. In regard to this contention, we said: [Mr. Cox] properly concedes that "there is no law in this state requiring parents to set aside their children's permanent funds." See, e.g., L.A.M. v. State, 547 P.2d 827, 832-33 n. 13 (Alaska 1976) (enumerating among those "parental rights" protected by the constitution "the right to control and manage" a minor child's earnings and property)_ Moreover, the record contains no findings by the trial court which support [Mr. Cox's] assertion that the parties contractually agreed to set aside the permanent fund monies. Id. at 1363. Alaska Statute 43.23.005(c) provides that "[a] parent, guardian, or other authorized representative may claim a Permanent Fund Dividend on behalf of an unemancipated minor or an behalf of a disabled or incompetent individual who is eligible to receive a payment under this section." In this appeal, Allan again concedes that the statute is silent concerning what a parent must or should do with a dividend after it is distributed. He attempts to distinguish Lee by noting that the record in the instant case clearly indicates an agreement to repay the PFD monies. The agreement Allan refers to, however, is between Lidia and the children, not between Lidia and Allan. Although it is clear that Lidia did promise the children that she would repay the $4,000, she made no promise to Allan, and reached no agreement with him, regarding repayment of those funds. Given our holding in Lee, the superior court's explanation for its ruling, and the legislature's silence as to what parents must or should do with PFDs received on behalf of unemancipated minors, we hold that the superior court did not err in rejecting Allan's motion that Lidia be required to repay the $4,000 in PFD monies that she borrowed. IV. CONCLUSION The superior court's judgment is AFFIRMED. MOORE, J., not participating. . The superior court further observed: The Alaska Supreme Court has stated that a non-parent who has an in loco parentis relationship with a child may be able to show that removing the child from their care would constitute clear detriment to the child's welfare. Buness [v. Gillen, 781 P.2d 985, 989 n. 8 (Alaska 1989)]. In Buness, the Court held that there was a question of fact sufficient to defeat summary judgment that clear detriment to the child's welfare would result if the non-parent who had been the primary caretaker and fa ther-figure to a child for ten years was denied custody. Id. The underlying rationale in awarding the psychological parent custody in these situations is that a break with the psychological parent would be more traumatic to the child than a break with the natural parent. Id. (citing Doe v. Doe, 92 Misc.2d 184, 399 N.Y.S.2d 977, 982 (N.Y.Sup.Ct.1977)). . This makes it unnecessary for us to reach Allan's argument concerning the constitutionality of according a parent a preference in custody disputes with a non-parent. Additionally, we find Allan's arguments pertaining to equitable adoption and alleged gender bias on the part of the superior court against fathers (or against step-fathers) to be without merit. . The superior court is vested with broad discretion making child custody determinations. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). As we have stated: This court will reverse the superior court's resolution of custody issues only if this court is convinced that the record shows an abuse of discretion or if the controlling factual findings are clearly erroneous. Abuse of discretion is established if the trial court considered improper factors or failed to consider statutorily-mandated factors, or improperly weighted certain factors in making its determination. McQuade v. McQuade, 901 P.2d 421, 424 n. 9 (Alaska 1995) (citations omitted). . In its conclusions of law, the superior court decided that [t]he decision concerning Lexie is much less difficult. Both parents are equally qualified for custody during the school year. There is very little difference between them. Given the expert's, the GAL's, Isaac's and the parents' firm opinions that Lexie should not be separated from her brother, placement with Lidia during the school year is the only option. . Moreover, we do not read the House and McQuade criteria as requiring the custodial parent to show, under any standard of proof, that the move proposed is in the children's best interests. Rather, the showing must be that it is in the children's best interests to remain in the custody of the present custodial parent, given the proposed move. See House, 779 P.2d at 1208. . None of the relevant facts are disputed. All that remains to be determined is the legal implications of these facts. This is a question of law, which we review de novo. Langdon v. Champion, 745 P.2d 1371, 1372 n. 2. .In response to a question by Allan's counsel regarding whether Lidia would agree to placement of the children's PFDs in a separate savings account for their college education, Lidia responded that she would agree to such a proposal in regard to future PFDs received on the children's behalf.

6988144

Richard M. GROVE, Appellant, v. STATE of Alaska, Appellee

Grove v. State

2011-05-27

No. A-10622

843

847

258 P.3d 843

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Richard M. GROVE, Appellant, v. STATE of Alaska, Appellee.

Richard M. GROVE, Appellant, v. STATE of Alaska, Appellee. No. A-10622. Court of Appeals of Alaska. May 27, 2011. David E. George, Anchorage, for the Appellant. Michael Sean Mclaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

2565

15528

OPINION COATS, Chief Judge. Richard M. Grove, who faced felony charges in the superior court, entered into a plea agreement with the State; under this agreement, Grove pleaded guilty to third-degree assault and felony eluding a police officer. During the negotiations leading up to this plea agreement, and at the entry of plea and sentencing, Grove was represented by James Wheeler. Wheeler was an employee of the Alaska Public Defender Agency. He was a law school graduate, but he was not a licensed attorney. After Grove was sentenced, he filed a petition for post-conviction relief in which he asserted that he had been denied the assistance of counsel. Grove contended that Wheeler had been practicing law as a "legal intern" for the Public Defender Agency under Alaska Bar Rule 44, and that Wheeler had violated the terms of his internship by appearing in court and representing Grove without the supervision of a licensed attorney. (Section 5(a) of Bar Rule 44 states that legal interns may appear and participate in superior court proceedings "if the [licensed] attorney representing the client is personally present and able to supervise the intern." A legal intern can be either a law student or a law school graduate.) The State responded that Wheeler had not been practicing law as a legal intern under Bar Rule 44, but rather had been practicing law under the authority of AS 08.08.210(d). This statute provides: Employees of the Department of Law, the Public Defender Agency, and the Office of Public Advocacy, whose activities would constitute the practice of law . are required to obtain a license to practice law in Alaska no later than 10 months following the commencement of their employment. The State argued that, under this statute, Wheeler could represent clients on behalf of the Public Defender Agency for up to ten months without being licensed as an attorney, and without a supervising attorney being present. The superior court adopted the State's position on this matter and denied Grove's petition for post-conviction relief Grove now appeals the superior court's decision. In his brief to this court, Grove takes the position that attorneys practicing under the authority of AS 08.08.210(d) should be subject to Bar Rule 44. In other words, he argues that AS 08.08.210(d) is a statute that purports to exempt legal interns from the requirements of Alaska Bar Rule 44 if the interns are practicing law on behalf of the Department of Law, the Public Defender Agency, or the Office of Public Advocacy. If this were indeed the case-that is, if the Alaska Legislature enacted AS 08.08.210(d) for the purpose of abrogating or relaxing the rules and requirements governing legal interns under Bar Rule 44-then AS 08.08.210(d) would probably be invalid. The Alaska Supreme Court has repeatedly held that the judicial branch of government, not the legislative branch, has the authority to regulate the practice of law and to set the rules that define who will be allowed to practice law. In particular, the supreme court has repeatedly held that when there is a conflict between a statute and a bar rule regarding the rules that define who is eligible to practice law, the bar rule controls-because bar rules are enactments of the supreme court. As the supreme court stated in Application of Houston, "the legislature . may not require this court to admit [persons to the practice of law] on standards other than those accepted or established by this court." Thus, the ultimate question is whether the challenged statute, AS 08.08.210(d), conflicts with Alaska Bar Rule 44, or whether the statute establishes an alternative method-ie, a method apart from the internships defined in Bar Rule 44-for authorizing law school graduates to practice law even though they have not been admitted to the practice of law by the Alaska Bar Association in the normal manner, and whether this alternative method has been accepted by the Alaska Bar Association. We have examined the website maintained by the Alaska Bar Association, and it is apparent that the Bar Association treats AS 08.08.210(d) as a separate authorization to practice law, different from the authorization given to legal interns under Bar Rule 44. According to the Bar Association's web site, a person may apply to practice law either under the statute (which the Bar refers to as the "10-month rule") or under Bar Rule 44. The Bar Association sets forth different application processes depending on whether the applicant is seeking authorization to practice law under the statute or the bar rule. It is possible to argue that, because AS 08.08.210(d) provides an additional method for law school graduates to practice law in this state, the statute does not simply augment the Alaska Bar Rules, but rather con-ficts with the Bar Rules. But our decision on this issue must be shaped by the fact that the Alaska Bar Association does not perceive a conflict between the statute and the bar rules. The Bar Association is the ageney charged with policing the practice of law and with determining which persons are eligible to practice law. Accordingly, we must defer to the Bar Association's interpretation of this matter unless we are convinced that the Bar Association's interpretation is clearly untenable or unreasonable. As the supreme court stated in Wilber v. Commercial Fisheries Entry Commission, "[when the interpretation of a statute or other question of law implicates agency expertise as to complex matters or as to the formulation of fundamental policy, we defer to the ageney's interpretation so long as it has a reasonable basis in the law." The issue of whether AS 08.08.210(d) conflicts with Bar Rule 44 or whether, instead, the statute provides an alternative method for law school graduates to practice law in Alaska is a matter involving "the formulation of fundamental policy." And the Bar Association's conclusion-that the statute does not conflict with the bar rule-does not appear to be clearly untenable or unreasonable. Indeed, while this opinion was undergoing technical review by the staff of this court, the Alaska Supreme Court resolved any doubt on this issue by amending Bar Rule 44 to explicitly acknowledge AS 08.08.210(d) as a dis-erete method by which a person can be authorized to practice law in this state. On March 18, 2011, the supreme court issued Supreme Court Order No. 1708. This order, which took effect on April 1, amended Bar Rule 44 by adding a new section-Section 8-that addresses the practice of law under AS 08.08.210(d): Practice of Law Under Statutory Authority. To be eligible to practice law without a license under the provisions of AS 08.08.210(d), a person must meet the eligibility requirements for obtaining a legal permit listed in Section 8(c)(1), (2), and (3) of this rule. Persons practicing under AS 08.08.210(d) must obtain a license to practice law in Alaska no later than 10 months following commencement of their employment. The authority for those per sons to practice law terminates upon the failure of that person to pass any bar examination administered by Alaska or any other state of the United States or the District of Columbia. With the enactment of Section 8 of Bar Rule 44, the supreme court has formally ratified the position adopted by the Bar Association: the view that AS 08.08.210(d) establishes an alternative method, separate from the internships defined in Bar Rule 44, for authorizing law school graduates to practice law even though they have not been admitted to the practice of law by the Alaska Bar Association in the normal manner. The supreme court's enactment of Section 8 of Bar Rule 44 also answers an objection that Grove raises to the specific content of the statute. In his brief to this court, Grove argues that AS 08.08.210(d) is unreasonable on its face-because, unlike the internships defined by Bar Rule 44, the authority to practice law granted by the statute is not explicitly limited to law school graduates or upper division law students. The statute merely refers to "employees" of the Department of Law, the Public Defender Agency, and the Office of Public Advocacy. Grove argues that the statute is written so broadly that any employee of these agencies-even those not trained in Iaw-could theoretically practice law for up to ten months. It is true that AS 08.08.210(d) does not explicitly require the agency employee to have a legal education, but we believe that this requirement is implicit in the statute. The statute declares that all persons practicing law under the statute "are required to obtain a license to practice law in Alaska no later than 10 months following the commencement of their employment." This requirement to obtain a license to practice law within the next 10 months makes sense only if the agency employees mentioned in the statute either (1) are eligible to take the next Alaska bar examination under the various provisions of Alaska Bar Rule 2, or (2) have already taken the Alaska bar examination and are awaiting the results, or (3) are already licensed to practice law in another jurisdiction and are eligible to be admitted upon motion pursuant to Section 2 of Bar Rule 2. We therefore hold that, at the time of the litigation in Grove's case, AS 08.08.210(d) required employees of the Public Defender Agency practicing under AS 08.08.210(d) to have met one of the foregoing criteria. We note that, effective April 1, 2011, the newly enacted Section 8 of Bar Rule 44 addresses and resolves this same issue. The first sentence of Section 8 declares: "To be eligible to practice law without a license under the provisions of AS 08.08.210(d), a person must meet the eligibility requirements for obtaining a legal permit listed in Section 8(c)(1), (2), and (8) of [Bar Rule 44]." Under these three referenced clauses of Section 3(c), a person practicing law under the authority of the statute (1) must be a graduate of an accredited American law school (or the graduate of an equivalent foreign law school); (2) must never have failed the Alaska bar examination; and (8) must never have failed a bar examination administered by any other American jurisdiction unless, after failing the examination, the person subsequently passed a bar examination administered by an American jurisdiction. The Alaska Supreme Court has the authority to set the rules that define who will be allowed to practice law, despite any contrary statutes enacted by the legislature. Thus, even if the legislature did not envision these precise requirements when it enacted AS 08.08.210(d), the new provisions of Section 8 of Bar Rule 44 take precedence. Beginning April 1, 2011, these provisions govern the practice of law under AS 08.08.210(d). For the reasons explained here, we agree with the superior court that James Wheeler, a law school graduate and an employee of the Public Defender Agency, was validly practicing law under AS 08.08.210(d) when he represented Grove. The judgment of the superior court is AFFIRMED. . AS 11,.41.220. . AS 28.35.182(b). . Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 165 (Alaska 1991); Application of Stephenson, 511 P.2d 136, 140-41 (Alaska 1973); Application of Park, 484 P.2d 690, 691 (Alaska 1971); Application of Houston, 378 P.2d 644, 645 (Alaska 1963). . 378 P.2d 644 (Alaska 1963). . Houston, 378 P.2d at 645. . See Alaska Bar Assoc., https://www.alaskabar. org/servlet/content/admissions.html (follow "le-galinterns/waivers/pro hac vice" hyperlink) (last visited Mar. 29, 2011). . 187 P.3d 460 (Alaska 2008). . Id. at 465 (quotations omitted).

11691077

Blake GWALTHNEY, Appellant, v. STATE of Alaska, Appellee

Gwalthney v. State

1998-10-16

No. A-6847

1285

1290

964 P.2d 1285

964

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

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

Blake GWALTHNEY, Appellant, v. STATE of Alaska, Appellee.

Blake GWALTHNEY, Appellant, v. STATE of Alaska, Appellee. No. A-6847. Court of Appeals of Alaska. Oct. 16, 1998. William R. Satterberg, Jr., Fairbanks, for Appellant. Michael J. Stark, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

2543

16696

MANNHEIMER, Judge. Blake Gwalthney was convicted of attempted first-degree sexual abuse of a minor; as part of his sentence, he was ordered to complete a sex offender treatment program while incarcerated. He failed to do this. While Gwalthney was still in prison (that is, before the date of Gwalthney's anticipated release on mandatory parole), the Parole Board held a hearing to decide whether Gwalthney's parole should be revoked due to his failure to complete the court-ordered rehabilitative treatment. Gwalthney chose not to appear at this hearing. The Parole Board found that Gwalthney had violated the treatment provision of his sentence, and so the Board anticipatorily revoked Gwalthney's parole. Gwalthney then petitioned the superior court for a writ of habeas corpus; he argued that he was entitled to parole release even though he had failed to complete sex offender treatment. The superior court denied Gwalthney's petition, and Gwalthney now appeals the superior court's decision. Gwalthney first asks us to deeide whether the Parole Board had the authority to antici-patorily revoke his scheduled mandatory parole release on account of Gwalthney's failure to complete the sex offender treatment ordered by the sentencing court. We recently decided this very issue. In Webb v. Department of Corrections, we held that the Parole Board can "anticipatorily revoke the scheduled [mandatory] parole release of prisoners who, while still incarcerated, engage in behavior that would warrant revocation of their parole". The specific behavior at issue in Webb was the defendant's failure to complete the sex offender treatment ordered by the sentencing court — the same behavior that led to the anticipatory revocation of Gwalthney's parole. Gwalthney recognizes that Webb controls his case, but he asks us to re-examine Webb. We now do so and, for the reasons explained here, we reaffirm Webb. The origins of the present controversy are found in Benboe v. State and the legislative response to that decision. In Benboe, the superior court sentenced a defendant to undergo rehabilitative, treatment while serving his prison sentence; on appeal, the defendant contended that this provision of his sentence was illegal. This court agreed. At the time Benboe was decided, AS 12.55.015 contained only one provision — subsection (a)(2) — that authorized a sentencing court to order a defendant to undertake rehabilitative treatment. Under subsection (a)(2), a sentencing court can place a defendant on probation "under conditions specified by the court". As Benboe acknowledges, subsection (a)(2) empowers a sentencing court to order a defendant to engage in rehabilitative treatment during the defendant's probation (that is, after a defendant's release from prison). However, Benboe held that neither subsection (a)(2) nor any other then-existing provision of AS 12.55.015 authorized a sentencing court to order a defendant "to participate in [rehabilitative] treatment while incarcerated". In response to Benboe, the legislature amended AS 12.55.015 by adding subsection (a)(10). Subsection (a)(10) authorizes a sentencing court to "order the defendant, while incarcerated, to participate in or comply with the treatment plan of a rehabilitation program that is related to the defendant's offense or to the defendant's rehabilitation^] if the program is made available to the defendant by the Department of Corrections". In the same session law, the legislature provided penalties for a defendant's failure to comply with a sentencing court's order under AS 12.55.015(a)(10) — that is, an order to participate in rehabilitative treatment while incarcerated. The legislature amended AS 12.55.085(b) to explicitly empower a sentencing court to revoke a defendant's probation for "violating an order of the court to participate in or comply with the treatment plan of a rehabilitation program under AS 12.55.015(a)(10)". The legislature also amended AS 33.16.220(a) to explicitly empower the Parole Board to revoke a defendant's parole if the defendant "has violated an order of the court to participate in or comply with the treatment plan of a rehabilitation program under AS 12.55.015(a)(10)". In cases where a prisoner withdraws or is ejected from rehabilitative treatment offered by the Department of Corrections, it will often be obvious, well in advance of the defendant's projected release date, that the defendant has violated the sentencing court's order "to participate in treatment . under AS 12.55.015(a)(10)". The issue we faced in Webb was whether the Parole Board was obliged to wait until that scheduled release date before commencing parole revocation proceedings, or whether the Board could instead anticipatorily revoke a prisoner's parole for failure to comply with the sentencing court's order. In Webb, we analogized the Parole Board's situation to the situation faced by a sentencing court when it is asked to revoke a defendant's probation. (As explained above, the legislature has declared that if a defendant violates an order to participate in rehabilitative treatment while incarcerated, this is a basis both for revoking the defendant's probation and for revoking the defendant's parole.) Alaska law already recognized a sentencing court's authority to revoke a defendant's probation for violations occurring before the defendant's release on probation. In Webb, we recognized an analogous authority in the Parole Board — to revoke a prisoner's parole for vi olations occurring before the prisoner's release on parole. Gwalthney claims that our decision in Webb is inconsistent with the Alaska Supreme Court's decision in Smith v. Department of Corrections. We have examined the Smith decision, and we find no inconsistency between Smith and Webb. We therefore re-affirm our decision in Webb. Gwalthney raises one other argument. He claims that, even if the Parole Board has the authority to anticipatorily revoke the parole of defendants who fail to complete court-ordered rehabilitative treatment, the Parole Board acted prematurely in his particular case because Gwalthney was under no obligation to complete sex offender treatment while he was in prison. To analyze Gwalth-ney's claim, and to explain the reasons why we reject it, we must detail the history of Gwalthney's sentencing. Gwalthney was convicted of attempted first-degree sexual abuse of a minor, a class A felony. As a first felony offender, Gwalthney faced a 5-year presumptive term for this crime. The sentencing judge concluded that Gwalthney had exceptional potential for rehabilitation, and the judge further concluded that it would be manifestly unjust if the court failed to adjust Gwalth-ney's presumptive term on account of his potential for rehabilitation. The judge therefore referred Gwalthney's sentencing to the three-judge sentencing panel. The three-judge panel agreed that Gwalth-ney had exceptional potential for rehabilitation and that, because of this heightened potential for rehabilitation, failure to modify Gwalthney's 5-year presumptive term would be manifestly unjust. The panel therefore imposed the following sentence: IT IS ORDERED [that] the defendant is committed to the custody of the Commissioner of the Department of Corrections for a period of . 5 years[,] presumptive[.] The defendant is ineligible for parole, except as provided in AS 33.16.090(b) and (c) [and (e) ]. IT IS FURTHER ORDERED that the defendant is to complete a sex offender [treatment] program approved by the Department of Corrections. The defendant [is] eligible for discretionary parole during the last half of his sentence if he successfully completes the program. Somewhat surprisingly, Gwalthney argues that this judgement did not require him to complete sex offender treatment at all. Gwalthney interprets the judgement to mean that he could engage in sex offender treatment if he wished, but if he chose not to complete sex offender treatment then he would not be eligible for discretionary parole during the latter half of his sentence. The short answer to Gwalthney's contention is that he has misread the judgement. The three-judge panel did not give Gwalth-ney a choice about engaging in sex offender treatment. The panel "ordered . the defendant . to complete a sex offender [treatment] program approved by the Department of Corrections". The panel then provided that, if Gwalthney completed the mandated sex offender treatment, he would be eligible for discretionary parole during the second half of his 5-year sentence. There is a longer answer to Gwalth-ney's contention: if the judgement were construed in the manner he suggests, it would be illegal. In AS 12.55.175(e), the legislature has limited the authority of the three-judge panel to mitigate a presumptive term when a ease is referred to the three-judge panel on the basis of the defendant's exceptional potential for rehabilitation. That statute provides: (e) If the three-judge panel determines . that manifest injustice would result from imposition of the presumptive term and the panel also finds that the defendant has an exceptional potential for rehabilitation and that a sentence of less than the presumptive term should be imposed .because of the defendant's exceptional potential for rehabilitation, the panel (1) shall sentence the defendant to the presumptive term required under AS 12.55.125; (2) shall order the defendant under AS 12.55.015 to engage in appropriate programs of rehabilitation; and (3) may provide that the defendant is eligible for discretionary parole under AS 33.16.090 during the second half of the sentence imposed under this subsection if the defendant successfully completes all rehabilitation programs ordered under (2) of this subsection. Under this statute, the three-judge panel is obligated to do two things: the panel (1) shall sentence the defendant to the applicable presumptive term, and (2) shall order the defendant to engage in appropriate rehabilitative programs under AS 12.55.015. The three-judge panel is then given the discretion to do a third thing: the panel (3) may grant the defendant eligibility for discretionary parole during the second half of the sentence, provided the defendant completes the rehabilitative treatment specified in paragraph (2). A straightforward reading of Gwalthney's judgement shows that the three-judge panel scrupulously adhered to the mandate of AS 12.55.175(e). The panel sentenced Gwalth-ney to the applicable 5-year presumptive term, the panel ordered Gwalthney to complete sex offender treatment, and the panel then provided that, if Gwalthney completed the rehabilitative treatment, he would be eligible for discretionary parole during the last half of his sentence. If we-read the. judgement as Gwalthney suggests (that is, if we interpreted the judgement as giving Gwalthney the choice whether to accept or decline sex offender treatment), then the judgement would be in violation of AS 12.55.175(e)(2) — for that section requires the three-judge panel to order Gwalthney to complete appropriate rehabilitative treatment. For these two reasons, we reject Gwalth-ney's suggested interpretation of the judgement. Gwalthney was ordered to complete sex offender treatment, regardless of his wishes. Gwalthney offers an alternative argument. He asserts that, even if the three-judge panel did order him to complete séx offender treatment, the panel did not require Gwalthney to complete this rehabilitative treatment prior to his release from prison. According to Gwalthney's interpretation, the judgement only requires him to complete this rehabilitative treatment sometime prior to his final discharge from state supervision — that is, sometime prior to his final discharge from parole. Thus, Gwalthney concludes, he was not yet in violation of the three-judge panel's order, and the Parole Board wrongly revoked his parole. The three-judge panel did not explicitly fix a deadline for Gwalthney's completion of sex offender treatment; the judgement states only that Gwalthney "is to complete a sex offender [treatment] program approved by the Department of Corrections". However, as explained above, this provision appears in the judgement because AS 12.55.175(e)(2) requires the judgement to contain such a provision. To interpret Gwalthney's judgement, we must therefore look to this governing statute. AS 12.55.175(e)(2) declares that, when the three-judge panel accepts a case because of the defendant's exceptional potential for rehabilitation, the panel "shall order the defendant under AS 12.55.015 to engage in appropriate programs of rehabilitation". As explained above, there are two clauses of AS 12.55.015 that authorize a sentencing court to order a defendant to complete rehabilitative treatment. The first is AS 12.55.015(a)(2), which authorizes the court to place a defendant on probation "under conditions specified by the court" — including a condition that the defendant undergo rehabilitative treatment. The second is AS 12.55.015(a)(10), which authorizes a sentencing court to "order the defendant, while incarcerated, to participate in or comply with the treatment plan of a rehabilitative program that is related to the defendant's offense or to the defendant's rehabilitation[,] if the program is made available to the defendant by the Department of Corrections". Thus, when AS 12.55.175(e)(2) speaks of the three-judge panel's obligation to order the defendant to engage in appropriate programs of rehabilitation "under AS 12.55.015", the statute contemplates two different types of sentencing orders: an order under AS 12.55.015(a)(10) for the defendant to engage in rehabilitative treatment while incarcerated, and an order under AS 12.55.015(a)(2) for the defendant to engage in rehabilitative treatment while on probation. If the three-judge panel had suspended any portion of Gwalthney's sentence of imprisonment and had sentenced Gwalthney to a period of probation, then the panel's judgement would conceivably be ambiguous as to Gwalthney's deadline for completing sex offender treatment — for the panel would have the authority to order such treatment either during Gwalthney's imprisonment or during his ensuing release on probation. But the three-judge panel did not suspend any portion of Gwalthney's sentence of imprisonment; he was sentenced to serve 5 years. Thus, in context, there is no ambiguity in Gwalthney's judgement. The three-judge panel ordered him to complete sex offender treatment while incarcerated, as authorized by AS 12.55.015(a)(10). To sum up: The three-judge panel ordered Gwalthney to complete sex offender treatment while he was in prison, and he failed to do this. Because Gwalthney failed to complete the court-ordered sex offender treatment, the Parole Board had good cause to revoke Gwalthney's mandatory parole. And because the Parole Board is empowered to act prospectively in such eases (that is, empowered to revoke a prisoner's mandatory parole before the prisoner is actually released on parole), the superior court correctly denied Gwalthney's petition for writ of habeas corpus. The judgement of the superior court is AFFIRMED. . 963 P.2d 1074, 1075. . Id., 963 P.2d 1074, 1075-1076. . 738 P.2d 356 (Alaska App.1987). . 738 P.2d at 360-61 & n. 6. . Id., 738 P.2d at 361. . See SLA 1990, ch. 188, § 1. . AS 12.55.085(b)(3), enacted by SLA 1990, ch. 188, § 2. . AS 33.16.220(a)(2), enacted by SLA 1990, ch. 188, § 10. . See Webb, 963 P.2d at 1076 & n. 4. . Id., 963 P.2d at 1076. . 872 P.2d 1218, 1226-27 (Alaska 1994). . AS 11.41.434(a)(1); AS 11.31.100(d)(2). . AS 12.55.125(c)(1). . See Smith v. State, 711 P.2d 561 (Alaska App.1985) (recognizing the non-statutory mitigating factor of exceptional potential for rehabilitation). . See AS 12.55.165 — 175. .The judgement, as actually worded, fails to mention subsection (e) of AS 33.16.090 — the subsection that allows the three-judge panel to make a defendant eligible for discretionary parole during the second half of a presumptive sentence if the defendant completes all rehabilitative programs ordered by the three-judge panel. Given the three-judge panel's explicit direction that Gwalthney be eligible for parole under these circumstances, it appears that the failure to mention AS 33.16.090(e) was unintentional. . Benboe v. State, supra; AS 12.55.100(a)(5).

6988314

Thomas M. BEATTIE, Appellant, v. STATE of Alaska, Appellee

Beattie v. State

2011-06-24

No. A-10505

888

893-901

258 P.3d 888

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Thomas M. BEATTIE, Appellant, v. STATE of Alaska, Appellee.

Thomas M. BEATTIE, Appellant, v. STATE of Alaska, Appellee. No. A-10505. Court of Appeals of Alaska. June 24, 2011. Jane B. Martinez, Contract Attorney, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

2526

15873

OPINION BOLGER, Judge. Thomas M. Beattie was tried for felony driving under the influence, a charge that required the State to prove that Beattie had at least two prior convictions for driving under the influence within the preceding ten years. The superior court granted Beattie's request to bifurcate his trial, so that the jury would hear no evidence of Beattie's prior convictions unless and until they found Beat-tic guilty of driving under the influence on the current occasion. The primary issue presented in this appeal arises because, after the jury found Beattie guilty in the first stage of the trial, the trial judge mistakenly dismissed the jurors without asking them to make any finding with regard to Beattie's prior convictions. To ree-tify this error, the superior court convened a second jury to decide whether Beattie had the requisite prior convictions. Beattie claims that this procedure violated the constitutional guarantee against double jeopardy. As we explain in this opinion, we conclude that Beattie implicitly consented to this procedure, and thus his double jeopardy rights were not violated. Beattie also argues his five-year sentence is excessive. We conclude that we do not have jurisdiction to hear Beattie's sentence appeal because his composite sentence falls within the presumptive range for his felony offense. Background The State charged Beattie with felony DUI, driving with a revoked license, and resisting arrest. At a pretrial evidentiary hearing, Superior Court Judge Kari Kristian-sen granted Beattie's request for a bifurcated trial on the felony DUI charge. Superior Court Judge Eric Smith then began a trial on the three charges, reserving the issue of Beattie's prior convictions for the second phase of the trial. On the last day of trial, defense counsel told the prosecutor that he believed Beattie would stipulate to proof of his prior convie-tions. This procedure would remove the need for this issue to be submitted to the jury. Later that day, the jury returned its verdicts, acquitting Beattie of resisting arrest and convicting him of driving with a revoked license and driving under the influence. The court reviewed the verdicts with the parties, determined that they were in proper form, read the verdicts out loud, and polled the jury members individually. The judge then thanked the jurors for their service and told them that they were free to discuss the case with others. Then the judge advised the jury about a decision-making survey and asked the bailiff to give them more detailed written instructions about how to fill it out. The judge advised the jury that he would be available to answer any questions after court adjourned. Defense counsel did not object or request that the jury be retained for the second phase of the trial. Judge Smith then discharged the jury. After the jury was dismissed, the court and parties stayed on the record and scheduled the sentencing date, discussed the (felony) presentence report, and discussed post-conviction bail-all issues that assumed no further jury proceedings were necessary. During the bail discussion, the prosecutor noted that now Beattie had been convicted of another felony. That is, the prosecutor's remarks assumed that the present case counted as a felony conviction. The defense did not object or request that the jury be recalled. Before the court adjourned, the judge announced that the attorneys were free to talk with the jury. In total, the court was on record for approximately eight minutes between the time that the jury came into the courtroom until the court adjourned. After adjournment, the judge and attorneys and investigators for both parties discussed the case with the jurors who remained at the courthouse. The defense did not object to the contact with the jurors, even though the State's investigator discussed Beattie's prior convictions. The next morning, court staff called the parties to remind them that they needed to put the stipulation regarding Beattie's prior DUI convictions on the record, and they scheduled a hearing for 1:80 p.m. that day to do so. Beattie's attorney confirmed on the telephone that Beattie would be stipulating to his prior convictions. But when the parties appeared in court for the hearing, Beattie's attorney announced that his client would not be stipulating to his prior convictions. The defense attorney explained that he had spoken about Beattie's case with a senior attorney in his office; this senior attorney pointed out that, because the jury was discharged without being asked to decide the issue of Beattie's prior convictions, Beattie had a potential double jeopardy objection to any renewed proceedings. The defense attorney told the superior court that, under these cireumstances, he was obliged to advise his client not to stipulate to the prior convictions. The defense attorney additionally argued that it was too late to recall the original jury-that some jurors had been tainted by their post-trial conversations with the trial judge, the attorneys for both sides, and their investigators. Over Beattie's objection, Judge Smith decided to call in a second jury to determine the prior-convictions issue. (Defense counsel later agreed that only the prior-convictions issue would need to be submitted to the new jury.) The second jury found the State proved Beattie's prior convictions beyond a reasonable doubt, and the court entered a conviction for felony DUI. The court sentenced Beattie to four and one-half years of imprisonment for the felony DUI and six months for the license charge. Double Jeopardy The protection against double jeopardy includes the defendant's right to have the case decided by the original jury empaneled and sworn to try the case Beattie asserts that his double jeopardy rights were violated when the superior court convened a second jury to decide the latter phase of his bifurcated trial. Once jeopardy attaches, a defendant may not be retried before a second jury for the same offense "unless he has consented to a mistrial or there was manifest necessity for granting a mistrial. But criminal defendants may relinquish their protection against double jeopardy by their own conduct or by the conduct of their attorneys. Most federal courts have concluded that defendants may relinquish their protection against double jeopardy when they have the clear opportunity to object to the discharge of the original jury but fail to do so. Many state courts have adopted the same rule. We join these courts and conclude that a defendant gives his implicit consent to trial before a second jury when he has the clear opportunity to object to the discharge of the original jury but fails to do so. The Fourth Circuit Court of Appeals dealt with a similar situation to Beattie's in United States v. Hom. In Hom, the district court completed most of a trial but failed to try a discrete issue required for the government's forfeiture request. The court rules required a special verdict regarding the forfeiture issue, but the trial court simply failed to present the forfeiture issue to the original jury. The Fourth Circuit held that the defendant had consented to the dismissal of the first jury because his attorney had the opportunity to object to the discharge of the jury but failed to do so. The record in this case shows that, after the clerk read the verdict and the defendants polled the jury, the district judge thanked the members of the jury for their time and effort, apologized for their inconvenience, and wished them a Happy Easter. With these short remarks, the district judge was clearly dismissing the jury. [Defendant] Swami's counsel could have interrupted the judge before he discharged the jury and reminded him that the jury had not completed the forfeiture phase of the trial. If Swami had wanted the original jury to decide the . forfeiture issue, he should have informed the court of this desire before it dismissed the jury. Although Swami had a right to have the original jury decide the . forfeiture issue, he could have asserted this right and prevented the district court from prematurely dismissing the jury. He did not do so. Swami cannot avoid a second trial on the forfeiture count on double jeopardy grounds and thereby profit from his failure to act. The actions of Swami's attorneys suggest that the double jeopardy argument was a mere afterthought that one of Swami's attorneys conjured up long after the district court dismissed the original These facts are almost identical to Beattie's, except in Beattie's case, it was not merely "suggested" that the double jeopardy argument was an afterthought-in Beattie's case the defense attorney clearly admitted that he did not consider the double jeopardy implications of dismissing the jury until after the jury had been discharged. In Beattie's case, we may infer from the totality of the conduct by his counsel that Beattie consented to the discharge of the jury. The court discussed end-of-trial procedures with the parties before bringing the jury in to deliver the verdict. After the jury delivered the verdict, the court advised the jurors regarding a survey about their experience as jurors, thanked the jurors for their time, advised them they were free to talk about the case, and dismissed them. As in Ham, the judge's remarks and procedure clearly indicated he was dismissing the jury. Beattie's counsel could have interrupted at any time and reminded the court of the need to retain the jury to try the prior-convictions issue. Beattie's counsel could have objected to the dismissal of the jurors. And even after the court dismissed the jurors, the parties and court remained on the record and discussed sentencing and post-conviction bail. Beattie still did not raise any request to have the jury recalled. Instead, after the court adjourned, Beattie's counsel and investigator participated in discussions with members of the jury that would prevent the jury from being recalled. Beattie's attorney had ample opportunity to object to the discharge of the jury. His acquiescence and his participation in the post-discharge discussions establishes that Beattie consented to the discharge of the jury. Because Beattie consented to the discharge of the original jury, the superior court did not violate Beattie's double jeopardy rights by convening a second jury to determine the issue of his prior convictions. Sentence Appeal Judge Smith sentenced Beattie to four and one-half years for felony DUI and six months for driving with a revoked license. The judge then stated, "The [net] is five years." We assume for purposes of this appeal that the judge intended to impose a five-year composite sentence. Beattie now argues that this composite sentence is excessive, relying on his right to appeal his sentence under AS 12.55.120. The sentence appeal statute provides that this court has authority to review a misdemeanor sentence that exceeds 120 days to serve. Thus, if Beattie had been convicted of driving with a revoked license alone and had been sentenced to the same six months to serve, we would have the authority to review his sentence. However, Beattie's composite sentence is within the applicable presumptive range for a third felony offender convicted of a class C felony. Alaska Statute 12.55.120(e) prohibits a defendant from challenging his sentence as excessive if the "sentence [is] within an applicable presumptive range set out in AS 12.55.125." We recently determined that we have no jurisdiction to decide a sentence appeal in this situation-where the composite sentence falls within the presumptive range for the defendant's most serious conviction. Both the Alaska Supreme Court and this Court have repeatedly held that when a defendant is sentenced for two or more offenses, Alaska law does not require that each of the defendant's separate sentences be individually justifiable under the Chaney sentencing criteria, as if that sentence had been imposed in isolation. Rather, the question is whether the defendant's combined sentence is justified in light of the entirety of the defendant's conduct and history. Because the propriety of Beattie's sentence must be assessed in light of the totality of his conduct and background, we conclude that we should not review Beattie's misdemeanor sentence when we have no jurisdiction to review his accompanying felony sentence. We have no jurisdiction to review Beattie's composite sentence. Instead, we must refer Beattie's case to the Alaska Supreme Court under Appellate Rule 215(k). Conclusion We AFFIRM the superior court's judgment of conviction, but we lack jurisdiction to decide whether the sentence is excessive. We refer that matter to the Alaska Supreme Court. . See AS 28.35.030(n). . AS 28.35.030(a)(1), (n); AS 28.15.291(a)(1); AS 11.56.700(a)(1). . Friedmann v. State, 172 P.3d 831, 836 (Alaska App.2007). . Douglas v. State, 214 P.3d 312, 326 (Alaska 2009). . Dutton v. State, 970 P.2d 925, 932 (Alaska App.1999). . See United States v. DiPietro, 936 F.2d 6, 11-12 (1st Cir.1991) (finding implied consent to a mistrial where error occurred several hours before court declared mistrial, defense attorney knew court was considering remedies although court did not explicitly announce it was considering mistrial, and parties and court stayed in courtroom for several minutes after mistrial decision was announced, during which time defense attorney argued for judgment of acquittal and discussed new dates for trial but did not object to mistrial); United States v. Nichols, 977 F.2d 972, 974 (5th Cir.1992) (holding that consent need not be express, but may be implied from the totality of the circumstances attendant to the declaration of mistrial); Camden v. Circuit Court, 892 F.2d 610, 615 (7th Cir.1989) ("'The record reveals that Camden and her attorney were afforded a minimal but adequate opportunity to object, albeit in the presence of the jury while the mistrial was being declared."); United States v. Puleo, 817 F.2d 702, 705 (1ith Cir.1987) (noting defendant consented to mistrial where trial judge expressed clear intent to declare mistrial and defense counsel had opportunity to object but did not). . See Brock v. State, 936 N.E.2d 266, 270 (Ind.App.2010) (indicating defendant waived right to claim double jeopardy violation by not objecting to State's request for mistrial or court's decision to grant one); State v. White, 369 N.W.2d 301, 304 (Minn.App.1985) (finding implied consent to a mistrial where defense counsel understood trial court intended retrial and counsel's responses encouraged court to declare mistrial); Marte v. Berkman, 70 A.D.3d 493, 494, 895 N.Y.S.2d 376 (N.Y.App.Div.2010) (holding that defense counsel's failure to object when court invited comment, or before the jury was discharged, constituted implied consent to declaration of mistrial); State v. Houston, 328 S.W.3d 867, 881 (Tenn. Crim.App.2010) (noting that, where the trial court clearly intends to declare mistrial and defendant fails to object to discharge of jury, defendant's consent can be inferred). . 58 F.3d 78 (4th Cir.1995). . Id. at 80-81. . Id. at 84. . Id. . See AS 12.55.120(a); AS 22.07.020(b). . See AS 12.55.125(e)(3). . See Richards v. State, 249 P.3d 303, 306-07 (Alaska App.2011). . Id. at 307 (emphasis omitted) (footnotes omitted) (citing State v. Chaney, 477 P.2d 441, 443 (Alaska 1970)).

6988198

Earl Cornelius BATES, Appellant, v. STATE of Alaska, Appellee

Bates v. State

2011-06-03

No. A-10350

851

866

258 P.3d 851

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Earl Cornelius BATES, Appellant, v. STATE of Alaska, Appellee.

Earl Cornelius BATES, Appellant, v. STATE of Alaska, Appellee. No. A-10350. Court of Appeals of Alaska. June 3, 2011. Beth Lewis Trimmer, Assistant Public Advocate, Appeals & Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

8116

50915

OPINION MANNHEIMER, Judge. Earl Cornelius Bates broke into the residence where his former girlfriend, Jessie Quilette, was living. Bates attacked Ouilette, and he also attacked Frank Iyatunguk (the primary renter of the residence) and Alfred Braun (a friend of Iyatunguk's). Based on this incident, Bates was convicted of attempted murder for his attack on Oullette. Bates was also convicted of third-degree assault for his attack on Iyatunguk and fourth-degree assault for his attack on Braun. At Bates's trial, the prosecutor was allowed to introduce evidence of a prior assault that Bates committed against Oullette, as well as evidence of prior assaults that Bates committed against a former girlfriend and her son. This evidence was admitted under the authority of Alaska Evidence Rule 404(b)(4); this rule states that when a defendant is tried for "a crime involving domestic violence", the government may offer evidence of the defendant's other crimes of domestic violence, whether against the same victim or against other persons. Evidence Rule 404(b)(4) expressly incorporates the definition of "crime involving domestic violence" that is codified in AS 18.66.990.. Under AS 18.66.990(8), the phrase "erime involving domestic violence" includes any crime against the person codified in chapter 41 of Title 11 of the Alaska Statutes (crimes such as attempted murder and assault in any degree) if the crime was committed "by [one] household member against another household member". In this appeal, Bates argues that the definition of "household member" is unconstitutionally vague-and that, because Evidence Rule 404(b)(4) incorporates this definition, Evidence Rule 404(b)(4) is likewise unconstitutional. As we explain in this opinion, we conclude that, under the facts of Bates's case, the definition of "household member" is not im-permissibly vague. We therefore uphold the application of Evidence Rule 404(b)(4) in Bates's case. Bates also challenges the trial judge's decision to allow the prosecutor to introduce the audio recording of a 911 call that was made from the Iyatunguk residence while Bates was there. The prosecutor argued that Bates could be heard speaking to the 911 dispatcher, and that Bates's words were evi-denee of his state of mind and his intentions when he attacked Ouilette and Iyatunguk. Bates opposed the admission of this evidence on the ground that the prosecution failed to offer any witness who would expressly identify the voice on the 911 recording as Bates's voice. As we explain in this opinion, the law does not require the proponent of such evidence to produce a witness who can affirmatively identify the voice(s) heard in the recording. Rather, the identification of the voice(s) can rest on cireumstantial evidence. In Bates's case, the cireumstantial evidence was sufficient to support a reasonable inference that Bates was the man speaking to the 911 dispatcher. Accordingly, the trial judge could properly allow the prosecution to play the recording for the jury. Finally, Bates challenges the sentencing judge's decision to make Bates ineligible for discretionary parole until he has served 20 years of his 38-year composite sentence. Bates received 80 years to serve for the attempted murder, plus consecutive sentences of 2 years and 1 year to serve for the third- and fourth-degree assaults. He normally would be eligible to apply for discretionary parole after serving 10% years of this composite sentence. See AS 88.16.090(b)(1) and (b)(7). We agree with Bates that the superior court failed to make sufficient findings to justify this restriction on Bates's parole eligibility. We therefore direct the superior court to reconsider this aspect of Bates's sentence. Why we conclude that the definition of "household member" is sufficiently defi-mite to be constitutionally applied to the facts of Bates's case As we described earlier, the trial judge allowed the prosecutor to introduce evidence of a prior assault that Bates committed against Oullette, as well as evidence of prior assaults that Bates committed against a former girlfriend and her son. This evidence was admitted under Alaska Evidence Rule 404(b)(4), which applies when a defendant is on trial for a "crime involving domestic violence". Under this rule, the government may offer evidence of the defendant's other crimes of domestic violence (whether against the same victim or against other persons). Evidence Rule 404(b)(4) incorporates the definition of "crime involving domestic violence" that is codified in AS 18.66.990. Under AS 18.66.990(8), a "crime involving domestic violence" includes any assaultive crime codified in AS 11.41-erimes such as attempted murder and assault in any degree-if the crime was committed "by [one] household member against another household member". As this Court noted in Bingaman v. State, 76 P.3d 398, 407 (Alaska App.2008), even though the phrase "domestic violence" is normally understood to mean an assault committed by one domestic partner against another, AS 18.66.990 defines the phrase "domestic violence" in a "special and wide-ranging way, quite divorced from its everyday meaning." One of the main reasons why Alaska's definition of "domestic violence" is so wide-ranging is that the legislature has defined the term "household member" in a broad, non-standard way. When AS 18.66.990(8) speaks of "domestic violence" as a crime committed "by [one] household member against another", one might assume that this phrase refers to crimes in which the perpetrator and the vie-tim share the same household. But AS 18.66.990(5) defines "household member" much more broadly: (5) "household member" includes (A) adults or minors who are current or former spouses; (B) adults or minors who live together or who have lived together; (C) adults or minors who are dating or who have dated; (D) adults or minors who are engaged in or who have engaged in a sexual relationship; (E) adults or minors who are related to each other up to the fourth degree of consanguinity, whether of the whole or half blood or by adoption, computed under the rules of civil law; (F) adults or minors who are related or formerly related by marriage; (G) persons who have a child of the relationship; and (H) minor children of a person in a relationship that is described in (A)-(G) of this paragraph[.] Now that we have described the pertinent statutory law, we will describe Bates's attack on the constitutionality of this law. (a) Bates's argument that the definitions of "dating" and "sexual relationship" are unconstitutionally vague When the prosecutor at Bates's trial announced his intention to offer evidence of Bates's prior assaults under Evidence Rule 404(b)(4), Bates raised a constitutional challenge to Rule 404(b)(4). Bates acknowledged that, under the definitions of "domestic violence" and "household member" codified in AS 18.66.990, his assault on Jessie Ouilette might be construed as a crime of domestic violence for purposes of Evidence Rule 404(b)(4). But Bates argued that the definition of "household member" was impermissi-bly vague-so vague that the statute and the evidence rule were both unconstitutional. The trial judge-Superior Court Judge Patrick J. McKay-held an evidentiary hearing to investigate the precise relationship between Bates and Quilette. At this hearing, QOuilette testified that she met Bates in 2008, and that Bates was her "boyfriend". Oui-lette stated that she started dating Bates in October 20083, and that she stopped dating him only after he assaulted her on February 26, 2007 (i.e., after he committed the assault that was litigated in this case). Quilette further testified that she first had sex with Bates in October 2008, and that she continued to have sex with him until February 2007. During this period, Oullette stated, she and Bates had sexual relations "[a] lot of times". With specific regard to the month of February 2007 (the month in which the assault took place), Ouilette stated that she and Bates had sex three times. Quilette's testimony was corroborated in part by the testimony of Anchorage Police Officer Justin Doll. Officer Doll testified that on June 3, 2004 he investigated a domestic violence incident between Bates and Oullette. When Doll interviewed Bates, Bates told him that "he had been dating [Ouilette] off and on since February [of that year]." When Doll interviewed Ouilette, she confirmed that she and Bates "had been dating off and on for several months." Based on this evidence, Judge McKay ruled that Bates's assault on Oullette qualified as a "crime involving domestic violence" because Bates and Ouilette qualified as "household members" under clauses (C) and (D) of the statutory definition codified in AS 18.66.990(5). That is, Judge McKay concluded that Bates and Oullette were dating or had dated, and that Bates and OQullette had engaged in a sexual relationship. On appeal, Bates argues that even if the testimony presented at the evidentiary hearing is true, Judge McKay committed error when he concluded that Bates and Ouillette had "dated", or that they had engaged in a "sexual relationship". Bates claims that these two clauses of the statutory definition are unconstitutionally vague because (according to Bates) the terms "dating" and "sexual relationship" have no clear, agreed-upon meaning. Bates argues that, because these terms have no clear meaning, there is no ascertainable standard for determining whether two people's social interaction constitutes "dating" or constitutes a "sexual relationship". Consequently (under Bates's argument), there was no objective way for Judge McKay to assess whether Bates and Oullette were "household members" as defined in clauses (C) or (D) of AS 18.66.990(5)-and, thus, there was no objective way for Judge McKay to decide whether Bates was charged with a "crime involving domestic violence"-the key foundational fact that would allow evidence of Bates's prior assaults to be admitted under Evidence Rule 404(b)(4). (b) Why many of the legal principles pertaining to overly vague statutes do not have any relevance to Bates's case Before we reach the issue of whether the terms "dating" and "sexual relationship" have ascertainable meanings, we must first explain why many of the legal principles pertaining to overly vague statutes have no relevance to Bates's case. Alaska cases generally declare that an overly vague statute poses three potential constitutional dangers. Seq, e.g., Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979); Bachlet v. State, 941 P.2d 200, 208-04 (Alaska App.1997). First, some overly vague statutes can be construed in a manner that unlawfully restricts the exercise of protected First Amendment rights. This danger is often referred to as "overbreadth"-although this same danger of overbreadth (i.e., infringe ment of First Amendment rights) can be posed by a statute that is perfectly clear and unambiguous. As this Court explained in Petersen v. State, Although courts often discuss overbreadth as an aspect of vagueness, these two concepts are distinct. "[A] statute may be invalid for being overbroad [even though its wording is] clear and precise if it prohibits constitutionally protected conduct." Stock v. State, 526 P.2d 3, 7 n. 7 (Alaska 1974) (citing Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231 (1972)). 930 P.2d 414, 425 (Alaska App.1996). Thus, in the context of impermissibly vague statutes, the danger lies in the fact that the meaning of the statute is so nebulous that it could potentially be construed in a manner that leads to overbreadth. The second danger posed by an overly vague statute is that the statute may not give people fair notice of what conduct is regulated or prohibited. The constitutional guarantee of due process of law requires that statutes "be sufficiently explicit to inform those who are subject to [them] what conduct on their part will render them liable" to criminal penalties. Marks v. Anchorage, 500 P.2d 644, 650 (Alaska 1972) (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926)). When a statute either requires peo ple to engage in particular conduct or forbids people from engaging in particular conduct, the statute must not be worded "in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application". Ibid. The third danger is that an overly vague statute may give unrestrained or undue discretion to police officials and prosecutors-and, later, to judges and juries-when they determine whether a person's conduct falls within the statute (¢.e., whether the person's conduct constitutes a crime). As this Court explained in Petersen, 930 P.2d at 424, an impermissibly vague statute "[places] a power of arbitrary or discriminatory enforcement in the hands of police, prosecutors, and ultimately judges and juries". Bates asserts that, due to the vagueness of the terms "dating" and "sexual relationship", the definition of "household member"-and, hence, the definition of "crime involving domestic violence"-presents all three of these dangers. But, in truth, the alleged vagueness that Bates complains of does not involve any of these dangers. Bates was prosecuted for attempted murder, based on his assault on Oullette. The definition of "crime involving domestic violence" plays no part in the definition of attempted murder. In other words, Bates's guilt or innocence of attempted murder did not hinge on whether his offense constituted a "crime involving domestic violence". Nor does the prescribed punishment for attempt ed murder differ according to whether the crime involves domestic violence. Rather, Bates's challenge to the definition of "household member" arises in the context of deciding whether Evidence Rule 404(b)(4) applied to Bates's case-whether this evidence rule authorized the State to introduce evidence of Bates's prior assaults on Quilette and on another girlfriend. In this context, any arguable vagueness in the definition of "dating" or "sexual relationship" has no potential bearing on Bates's exercise of First Amendment rights. Al though Bates argues that his right of association is infringed by the lack of clarity in the definitions of "dating" and "sexual relationship", this argument has no merit. Evidence Rule 404(b)(4) does not restrict or chill anyone's choice of boyfriends, girlfriends, or sexual partners. Evidence Rule 404(b)(4) merely states that if a person is prosecuted for assaulting or trying to kill a boyfriend, girlfriend, or sexual partner, and if the person has assaulted boyfriends, girlfriends, or sexual partners in the past, the trial judge can allow the government to introduce evidence of these prior assaults. For similar reasons, the alleged lack of clarity in the definitions of "dating" and "sexual relationship" does not raise any problem regarding Bates's advance notice of the law. In the context of attacks on a statute for vagueness, the notion of "advance notice" does not refer to a person's ability to anticipate what evidence will be admissible at their trial in the event they are prosecuted for a crime. Rather, advance notice refers to a person's ability to understand what conduct the law requires or forbids (so that they can avoid criminal charges by conforming their conduct to the law). As we have explained, Bates's guilt or innocence of assaulting and attempting to kill Quilette did not hinge in any way on the definition of "domestic violence" or "crime involving domestic violence". Thus, the alleged vagueness of the terms "dating" or "sexual relationship" had no bearing on Bates's ability to understand the definition of atterapted murder and to refrain from doing what that statute forbids (attempting to kill another person). For the same reason, the alleged lack of clarity in the terms "dating" or "sexual relationship" posed no danger of giving police officials, prosecutors, and juries the power to prosecute or conviet Bates of attempted murder in an arbitrary or discriminatory way. The question of whether Bates's attempt to kill Quilette constituted a "crime involving domestic violence" had no bearing on the elements of attempted murder, nor did it have any bearing on the jury's decision as to whether the State had proved those elements beyond a reasonable doubt. (c) The legal test that applies to Bates's case Although Bates's case does not involve the three dangers discussed in the preceding seetion, Bates does have standing to complain of the alleged vagueness in the definitions of "dating" and "sexual relationship". But Bates's legal interest in this matter is merely the interest in having the trial judge apply the law of evidence rationally and even-hand-edly. The Alaska Supreme Court has addressed this point of law in two cases: Williams v. Alaska Department of Revenue, 895 P.2d 99 (Alaska 1995), and R.R. v. State, 919 P.2d 754 (Alaska 1996). Williams involved a woman who filed a claim for worker's compensation based on stress-related mental injuries. The Workers' Compensation Board denied her claim, and she then appealed to the supreme court One of Williams's main contentions on appeal was that the statutory definition of "injury" (for purposes of workers' compensation claims) was unconstitutionally vague. The supreme court noted that Williams's claim of vagueness did not present any of the three dangers normally associated with over ly vague statutes: the chilling of First Amendment rights, the failure to give notice of prohibited conduct, or the potential for arbitrary or discriminatory enforcement The court then stated, "Assuming that there is a constitutional [claim] of statutory vagueness in a case such as this, . [alll that should be required is legislative language which is not so conflicting and confused that it cannot be given meaning in the adjudication process." The second case, RR. v. State, involved a child-in-need-of-aid proceeding. The appeal was brought by the mother of four children after the superior court removed the children from her custody. One of the mother's arguments on appeal was that there was an unconstitutional vagueness in AS 18.26.045, the statute that grants the superior court the authority to appoint a guardian for an unmarried minor if all rights of custody possessed by the minor's parents have been suspended or terminated. Again, as in Williams, the supreme court noted that the mother's challenge to the statute did not involve the three dangers normally associated with overly vague statutes. And because of this, the supreme court explained, the mother had only one potential constitutional ground for attacking the alleged vagueness of the statute: the claim that the statutory language was "so conflicting and confused that it cannot be given meaning in the adjudication process." The court rule at issue in Bates's case-Alaska Evidence Rule 404(b)(4)-is analogous to the statutes at issue in Williams and RR.. Evidence Rule 404(b)(4) does not restrict First Amendment rights; it prohibits no conduct; and it does not authorize either criminal prosecutions or civil enforcement actions where a person might lose an important right based on proof that the person's conduct did not meet a certain standard. Thus, at best, Bates's case is governed by the same limited vagueness test that the Alaska Supreme Court applied in Williams and RR.. We say "at best" because there is a potential distinction between Bates's case and the litigation in Willams and R.R.. The question presented in both Williams and R.R. was the potential vagueness of the standard that governed the granting or denial of relief In contrast, the evidence rule that Bates challenges in the present appeal does not govern whether one side or the other is entitled to relief, but rather only the type of evidence that can be introduced at trial. Arguably, then, Bates's interest in challenging the vagueness of Evidence Rule 404(b)(4) is of even less weight than the interests of the litigants in Williams and R.R.. But even if Bates's case is governed by the same vagueness test that the Alaska Supreme Court applied in Williams and RR., Bates has failed to show that Evidence Rule 404(b)(4) suffers from unconstitutional vagueness. For the reasons we are about to explain, we conclude that the legislature's use of the terms "dating" and "sexual relationship" in the definition of "household member"-and, by reference, in the definition of "crime involving domestic violence"-does not result in a definition "so conflicting [or] confused that it cannot be given meaning in the adjudication process." (d) Application of this test to the facts of Bates's case As we explained in the preceding seetion of this opinion, the question confronting us is whether the terms "dating" and "sexual relationship" have a sufficiently . certain meaning that they provide an ascertainable standard for trial judges to use when the judges are asked to decide whether Evidence Rule 404(b)(4) applies to a defendant's case-that is, when judges are asked to decide whether the defendant is on trial for a "crime involving domestic violence". Although the law requires an ascertainable standard, the law does not require a standard that eliminates all ambiguity or doubt. For instance, in Williams, our supreme court had to decide whether the phrase "extraordinary and unusual . pressures and tensions" was sufficiently definite to survive a vagueness challenge. The court declared that this phrase "readily satisfies [the] test". 895 P.2d at 105. The supreme court noted that "[this] language is no more general than numerous other terms which have survived void for vagueness challenges." Ibid., citing Coghill v. Coghill, 836 P.2d 921, 929 (Alaska 1992) (upholding "good cause" and "manifest injustice"); Storrs v. State Medical Board, 664 P.2d 547, 549-50 (Alaska 1983) (upholding "professional incompetence"); R.C. v. Department of Health and Social Services, 760 P.2d 501, 506 (Alaska 1988) (reviewing appellate decisions which rejected vagueness challenges to standards such as "unfit", "improper", "neglected", "basic, essential, and necessary needs", and "reasonable parental care"). The supreme court also noted that the legislature, when drafting this statute, had to "address the subject broadly[,] because every employee's condition is different". Id. at 106. The court concluded that the statute was sufficiently clear because its wording "provides specific information on how to determine whether a stress[-}related mental injury is in fact compensable under the [Work-erg Compensation] Act." Ibid. The court conceded that "there [would] always be borderline and difficult cases", but the court noted that borderline and difficult cases "are a [given] whenever a general standard is applied." Ibid. See also Haggblom v. City of Dillingham, 191 P.3d 991, 997-99 (Alaska 2008) (rejecting a vagueness challenge to the phrase "without provocation"), and Panther v. State, 780 P.2d 386, 390-91 (Alaska App.1989) (rejecting the contention that there is no objectively ascertainable distinction between a "deviation" from the applicable standard of care and a "gross deviation" from the same standard of care). Returning to the vagueness claim that Bates raises in this appeal, we conclude that the phrase "sexual relationship" is sufficiently definite to survive Bates's vagueness challenge. In the entry for the adjective "sexual" in Webster's New World College Dictionary (Fourth Edition, 2004), the pertinent definition is "characteristic of, or involving sex . or the instinets, drives, behavior, etc., associated with sex". Id. at p. 1814. And in the entry for the noun "relationship", the pertinent definition is "a continuing attachment or association between persons, firms, etc., specif{ically], one between lovers". Id. at p. 1209. (The pertinent definition of the noun "lover" is "a person who loves sexually or romantically; speciffically], a) either partner in a sexual relationship of any kind, [or] b) either partner in an adulterous or otherwise illicit sexual relationship". Id. at p. 851.) These definitions provide an ascertainable standard for determining whether two people are in a sexual relationship. It is true, as the supreme court noted in Williams, that there will inevitably be borderline or difficult cases-cases where the facts do not clearly disclose whether the attachment or association between the two people is a "continuing" one, or (alternatively) where the facts do not clearly disclose whether the continuing attachment or association between the two people involves sex or the "instinets, drives, [or] behavior . associated with sex". But these difficulties are not present in Bates's case. As we explained earlier in this opinion, Judge McKay held an evidentiary hearing to investigate the precise relationship between Bates and Ouillette. At this hearing, Oullette testified that she met Bates in 2008, and that Bates was her "boyfriend". Oullette stated that she started dating Bates in October 2003, and that she stopped dating him only after he assaulted her on February 26, 2007 (i.e., after he committed the assault that was litigated in this case). Quilette further testified that she first had sex with Bates in October 2008, and that she continued to have sex with him until February 2007. During this period, Ouilette stated, she and Bates had sexual relations "[a] lot of times". With specific regard to the month of February 2007 (the month in which the assault took place), Oullette stated that she and Bates had sex three times. This testimony amply supports Judge McKay's conclusion that Bates and Ouilette were participants in a "sexual relationship". We turn now to the more difficult question of whether the term "dating" has a meaningful definition. In Webster's New World College Dictionary, the entry for the verb "date" contains only one pertinent definition: "to have social engagements with persons of the opposite sex". Id. at p. 868. But this definition is plainly inaccurate, or at least misleading. For example, this definition falsely suggests that "dating" includes the act of meeting one's relative or one's business associate for lunch, if the relative or business associate is of the opposite sex. In addition, this definition falsely suggests that "dating" can occur only in a heterosexual relationship. In this country, when we say that two people are "dating", this phrase connotes an ongoing series of social engagements, usually characterized by the parties' interest, or at least their potential interest, in pursuing a romantic relationship. Here, for instance, is the Wikipedia entry for "dating": Dating is a form of human courtship consisting of social activities done by two persons with the aim of each assessing the other's suitability as a partner in an intimate relationship or as a spouse. While the term has several senses, it usually refers to the act of meeting and engaging in some mutually agreed upon social activity in public, together, as a couple. The protocols and practices of dating, and the terms used to describe it, vary considerably from country to country. The most common [meaning] is two people trying out a relationship and exploring whether they're compatible by going out together in public as a couple[. They] may or may not yet be having sexual relations, and this period of courtship is sometimes seen as a precursor to engagement or marriage. http://en.wikipedia.org/wiki/Dating (May 10, 2011) (emphasis in the original). See also this entry of September 24, 2007 entitled "The Definition of Dating", from Bonny Albo's Bonny's Dating Blog: [A] date refers to an activity two people share together with the intention of getting to know each other better on a potentially romantic level. This differs greatly from "hooking up" [, a term] which usually describes a casual get[-]together between two people that may or may not be sexual in nature. Two people who are "dating" . have shared several dates together and have made it clear to one another they are interested in more than just a friendship-even if so far the exchanges have been purely friendly in nature. Dating is, essentially, getting to know someone over an extended period of time to determine if a relationship is something worth pursuing. http://dating.about.com/b/2007/09/24/the-definition-of-dating.htm. We acknowledge that these two sources (a Wikipedia entry and a blog entry) are not the type that courts traditionally rely on to determine the meaning of a word or phrase. In the present case, however, the dictionary has failed us. Moreover, as Bates strenuously notes in his brief, people can have quite different views as to what the word "dating" means-in large part, because the meaning of this word has been shifting in the past decades as our society has experienced changes in the relations between the sexes and the role of marriage as an institution. In these circumstances, one could plausibly argue that Wikipedia offers one of the most accurate gauges of what the word "dating" now means in contemporary culture. The articles in Wikipedia are open to editing by essentially anyone with Internet access. This process of public input means that Wikipedia articles are subject to a type of "social Darwinism". To quote the Wikipedia article on the characteristics of a "wiki" website: [Blecause of the openness and rapidity [with which] wiki pages can be edited, the pages undergo a natural selection process like that which nature [imposes on] living organisms. "Unfit" sentences and sections are ruthlessly culled, edited{,] and replaced if they are not considered "fit" [by the public], which hopefully results in the evo-Tution of . higher quality and more relevant [content]. Whilst such openness may invite "vandalism" and the posting of untrue information, this same openness also makes it possible to rapidly correct or restore [the] quality [of the] wiki page. http://en.wikipedia.org/wiki/Wiki, "Characteristics" (May 10, 2011). Turning now to more traditional legal authorities, we note that several state legislatures have likewise defined "dating" as a continuing relationship (rather than a single social engagement or isolated outings) whose object (or at least potential object) is long-term intimacy or marriage. California law defines "dating relationships" as "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." California Family Code, § 6210, and California Penal Code, § 2483($)(10). In a similar vein, Texas Family Code $ 71.0021(b) defines a "dating relationship" as a continuous relationship of a "romantic" or "intimate" nature. The Texas statute further provides that the existence of a dating relationship is to be determined by considering the length and nature of the relationship, and the frequency and type of the couple's interactions. See Ochoa v. State, - S.W.3d -, - (Tex.App.2010). Washington law defines "dating relationship" as "a social relationship of a romantic nature"; Washington Statutes § 26.50.0108). Like the Texas statute, the Washington statute provides that the existence of a dating relationship is to be determined by considering various factors: the length and nature of the relationship, as well as the frequency of the couple's interactions. See also Massachusetts Statutes, chapter 209A, § 1. We acknowledge that the Alaska statute-AS 18.66.990(5)(C)-uses the term "dating" rather than "dating relationship". We further acknowledge that this statute speaks in terms of persons "who are dating or who have dated". The latter portion of this phrase, "or who have dated", could conceivably be interpreted to include persons who have gone on a single date in the past. Nevertheless, we conclude that, at least in the context of defining "domestic violence", it makes the most sense to interpret the term "dating" as referring to a relationship-that is, a continuing attachment or association-rather than isolated shared social engagements. As the Supreme Court of Kentucky noted in Barnett v. Wiley, 103 S.W.3d 17, 19 (Ky.2003), the purpose of domestic violence legislation is to protect victims from harm caused by . persons whose intimate . relationship to the victim increases the danger of harm, either because the parties live in physical proximity or because the relationship is one whose intimacy may disable the victim from seeking protection. See also State v. Ankeny, 358 Mont. 82, 243 P.3d 391, 397 (2010) (quoting this passage). This view, that "domestic violence" is violence that arises in the context of a relationship, was echoed by the Colorado Supreme Court last year in People v. Disher, 224 P.3d 254, 258 (Colo.2010): "[The hallmark of domestic violence [is an] action that is used to coerce, control, punish, intimidate, or exact revenge within the context of an intimate relationship." Because the focus of domestic violence legislation is the violence that takes place within the context of a relationship, we conclude that the term "dating" should be interpreted in the sense indicated by the authorities (both legal and non-legal) that we have reviewed here: a relationship that either is marked by emotional intimacy or whose purpose is to allow two people to evaluate each other's suitability as a partner in an intimate relationship or in marriage. We believe that this interpretation most closely reflects the legislature's intention when it enacted our domestic violence legislation. There will inevitably be borderline or difficult cases-sgituations where it is unclear whether a couple's interactions meet this definition. But this does not mean that the definition is fatally vague. We discussed this point of law in Panther v. State, 780 P.2d 886 (Alaska App.1989)-the case where we were asked to decide whether there was an objectively ascertainable distinction between a "deviation" and a "gross deviation" from the standard of care that reasonable people would observe under the cireumstances. In Panther, we acknowledged that {tlhe distinction between a "deviation," on the one hand, and a "gross deviation," on the other, undeniably involves a normative component. Yet, this imprecision is unavoidable and falls well within traditionally accepted limits. The fact that the standard does not provide a bright-line test for determining when a risk is so substantial and unjustifiable that failure to observe it should be punished does not mean that the standard is unconstitutionally vague. Although difficult to define concretely, the statutory requirement of a "gross deviation" from the standard of care that a reasonable person would observe is readily comprehensible. 780 P.2d at 390-91. See also Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926) (declaring that statutory definitions can withstand a vagueness challenge "notwithstanding an element of degree in the definition as to which estimates might differ"). Moreover, Bates's case is not a borderline case. As we have already described, Ouilette testified at the evidentiary hearing about the details of her relationship with Bates. Her testimony amply supports Judge McKay's conclusion that Bates and Ouilette were "dating" when Bates committed the assault in this case. Under the facts of this case, and under the definitions of "sexual relationship" and "dating" that we have described in this opinion, Judge McKay correctly ruled that Bates and Quilette were "household members" as that phrase is defined in AS 18.66.990(5), and thus Bates's assault on Ouillette qualified as a "crime involving domestic violence" for purposes of Evidence Rule 404(b)(4)-i.e., under the definition of "domestic violence" codified in AS 18.66.990(8). Why we conclude that the State presented a sufficient evidentiary foundation for the audio recording of the 911 call At Bates's trial, Judge McKay allowed the prosecutor to introduce the audio recording of a 911 call that was made from the Iyatun-guk residence while Bates was there. The prosecutor argued that, during a portion of this recording, Bates could be heard speaking to the 911 dispatcher, and that Bates's statements to the 911 dispatcher were relevant to show his state of mind-in particular, his intentions when he attacked Ouillette and Iyatunguk. (There were actually two 911 calls placed from Iyatunguk's residence. The first call was made by Iyatunguk, and that call is not at issue here. The controversy pertains to the second 911 call. This second call was initiated by Iyatunguk's friend, Alfred Braun, but then a second man-allegedly Bates-began speaking to the dispatcher.) The evidence pertaining to the see-ond 911 call was sufficient to establish that the second man who spoke was neither Iya-tunguk nor Braun. The 911 dispatcher testified that Tyatunguk identified himself during the first call-thus allowing the inference that the dispatcher would have recognized ITyatunguk's voice if he had spoken to her again during the second 911 call. The dispatcher further testified that Braun identified himself during the initial portion of the second 911 call, and that the other man who spoke to her during the latter portion of this second call was not Iyatunguk. Nevertheless, Bates opposed the admission of the audio recording on the ground that the prosecution failed to offer any witness to expressly identify the second voice on the 911 recording as Bates's voice. Judge McKay ruled that the State could play the audio recording for the jury, but he prohibited the State from eliciting the 911 dispatcher's opinion that the man who spoke to her during the latter half of the second call was Bates. The State then played the recording for the jury. The recording begins with Alfred Braun identifying himself and asking for police assistance because Bates and Iyatunguk were fighting. The 911 dispatcher can be heard obtaining information from Braun, and counseling him to get away from Bates. Braun then told the 911 dispatcher that he was going to try to separate Bates and Iya-tunguk. To do this, Braun put the phone down (without hanging up). Shortly after Braun set the phone down, a different male voice came on the line. When the 911 dispatcher asked this man to identify himself, the man responded, "It doesn't matter." The man repeatedly refused to identify himself, telling the dispatcher that his name "didn't] matter", or that his name was "Nobody". Shortly after this second man got on the line, he told the 911 dispatcher, "You are gonna put a bullet in my head". The man can also be heard shouting to other people in the apartment, "Anyone else wanna play with me, bitches?" The unidentified man then put the phone down, and the 911 recording picked up a new sound-apparently, the sound of someone being hit or kicked. A woman can be heard screaming and moaning-presumably Ou lette, since she was the only woman at the residence. After this, the unidentified man came back on the line (and again refused to identify himself). When the 911 dispatcher asked him, "What's going on there?", the man responded, "You already know what's going on." Finally, the man told the dispatcher that he was "hanging up now". The man added, "I'm bleeding severely . bleeding severely. And I'm ready." Shortly after that, the line went dead. In his brief to this Court, Bates notes that the State did not ask Iyatunguk or Braun or any other person present at the residence to identify Bates as the person speaking to the dispatcher during the latter portion of the 911 call. Bates argues that, without this type of evidentiary foundation, the recording was inadmissible because there was no showing that the recording was relevant. (See Alaska Evidence Rule 402, which declares that evidence is not admissible unless it is relevant.) The State argues that there was no need for the prosecutor to offer evidence that the man speaking to the 911 dispatcher was Bates. The State relies on this Court's decision in Thompson v. State, 210 P.3d 1233, 1238-39 (Alaska App.2009), where we stated that "the modern test for authentication [of an audio recording] is whether the proponent of the evidence has presented sufficient evidence to support a rational finding that the . recording is authentic". Based on this passage from Thompson, the State contends that once the prosecutor offered sufficient evidence to support a finding that the recording was an accurate rendition of the 911 dispatcher's conversation with the people in the residence, the recording was admissible even without proof that Bates was one of the men who spoke to the dispatcher. This may be true as far as it goes. But as we have explained, the trial prosecutor argued to the jury that it was Bates who made the statements to the dispatcher during the second portion of the tape-and that these statements demonstrated Bates's state of mind. To support this assertion, the prosecutor needed to prove something more than simply the fact that a conversation occurred between some man and the 911 dispatcher, and that this conversation was accurately rendered in the recording. The prosecutor also had to prove that the man speaking those words was Bates. (This issue did not arise in Thompson because, in that case, there was no dispute concerning the identity of the participants in the recorded conversations. The defendant's challenge to the recording was that it might not accurately reflect the content of the conversations.) The rule that governs situations like this is Evidence Rule 104(b): Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit [the evidence] upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. As explained in the Commentary to Rule 104(b), there are times when a picce of evidence is relevant only if a particular underlying fact is true: [When a spoken statement is relied upon to prove [that a person had] notice [of something], [the statement] is without probative value unless [the person] heard it. Or if a letter purporting to be from [a particular person] is relied upon to establish an admission [against interest by that person], [the letter] has no probative value unless [the person] wrote or authorized it. This type of relevance is called "conditional relevance", and Evidence Rule 104(b) prescribes the rule for situations where the parties dispute the underlying fact which, if true, makes the evidence relevant. Under Rule 104(b), the trial judge should allow a party to offer the conditionally relevant evidence if there is-or if, according to the party's offer of proof, there will be-sufficient evidence to justify a reasonable conclusion that the disputed underlying fact should be resolved in the offering party's favor. Thus, in the examples given in the Commentary, the trial judge should admit evidence of the spoken statement if there is sufficient evidence to justify a reasonable conclusion that the person in question heard the statement. Similarly, the trial judge should admit evidence of the content of the letter if there is sufficient evidence to justify a reasonable conclusion that the person in question wrote or authorized the letter. It is up to the trier of fact (the jury or, in bench trials, the judge) to determine, during final deliberations, whether the asserted underlying fact is true. If the trier of fact finds that the underlying fact is true, then the evidence will be relevant, and the trier of fact can rely on the evidence in reaching the verdict. If, on the other hand, the trier of fact finds that the underlying fact is not true, then the trier of fact will naturally disregard the evidence-because the irrelevance of the evidence will be obvious. For instance, in the examples described in the Commentary, if the trier of fact finds that the person in question did not hear the spoken statement, then of course the trier of fact will conclude that the statement is irrelevant for purposes of deciding whether the person was on notice of the things mentioned in that statement. Similarly, if the trier of fact finds that the person in question did not write or authorize the letter, then the trier of fact will conclude that the things written in the letter do not constitute admissions of the person in question. We applied this principle in Bennett v. Anchorage, 205 P.3d 1113, 1117 (Alaska App.2009), a case where the relevance of a prior act of domestic violence hinged on resolution of a factual dispute concerning the nature of the prior act, and in James v. State, 671 P.2d 885, 892-98 (Alaska App.1983), a case where there was a dispute as to the identity of the person who telephoned the local police dispatcher and asked the police to "get [the victim] out [of here} before I kill him". We also applied this principle in Ayagarak v. State, Alaska App. Memorandum Opinion No. 4695 (April 23, 2003), 2003 WL 1922623, *5, where there was a dispute as to whether a prior bad act was committed by the defendant or by someone else. This same principle governs the dispute in Bates's case. The prosecutor offered evidence of the statements made to the 911 dispatcher under the theory that it was Bates who made those statements. Under Evidence Rule 104(b), the State could properly introduce this evidence if there was sufficient evidence to support a reasonable conclusion that it was, in fact, Bates who made the statements. It is true, as Bates points out, that the prosecutor did not present any witness who directly identified the voice in the recording as Bates's voice. But this underlying fact could be proved by cireumstantial evidence. In this case, there were five men in. the residence at the time the 911 call was made: Iyatunguk, Braun, Bates, and two brothers whose last name was Nikolai. Iyatunguk's voice and Braun's voice had already been identified (Iyatunguk's in the first 911 call, and Braun's in the initial portion of the see-ond 911 call). Thus, the man speaking to the 911 dispatcher during the latter portion of the second 911 call could only be Bates or one of the Nikolai brothers. The man who was speaking claimed that he was bleeding. Of the three potential speakers (Bates and the Nikolai brothers), Bates was the only one who was bleeding, and the only one who was conscious. (The evidence showed that the Nikolai brothers had passed out from drinking, and they were not bleeding.) These facts provided sufficient cireumstan-tial evidence to support a reasonable conclusion that Bates was the one speaking to the 911 dispatcher during the latter portion of the 911 call. Consequently, the recording of the 911 call-offered as evidence of Bates's statements-was admissible under Evidence Rule 104(b). Judge McKay's decision to restrict Bates's parole eligibility Judge McKay sentenced Bates to serve 380 years for the crime of attempting to murder Ouilette, and the judge imposed consecutive sentences of 2 years and 1 year to serve for Bates's assaults on Iyatunguk and Braun. Under the rules governing parole eligibility codified in AS 83.16.090, Bates would normally be eligible to apply for discretionary parole after serving 10% years of this composite 38-year sentence. See AS 88.16.090(b)(1) and (b)(7). However, Judge McKay exercised his authority under AS 12.55.115 and declared that Bates would not be eligible to apply for discretionary parole until he served 20 years of the composite sentence. Under Alaska law, a sentencing judge who decides to restrict a defendant's eligibility for parole must "specifically address the issue of parole restriction" and must "[explain]} with particularity [the] reasons for concluding that the [normal] parole eligibility prescribed by AS 38.16.0900 and AS 33.16.100(c)-(d) is insufficient to protect the public and [ensure] the defendant's reformation." Hinson v. State, 199 P.3d 1166, 1173 (Alaska App.2008), quoting Stern v. State, 827 P.2d 442, 450 (Alaska App.1992). In its brief to this Court, the State acknowledges that even though Judge McKay "made various direct and indirect statements" regarding his decision to restrict Bates's parole eligibility, the judge's statements "arguably" do not satisfy the requirements of Hinson and Stern. We have examined the sentencing record, and we agree that Judge McKay's sentencing remarks do not adequately explain the parole restriction as required by Hinson and Stern. Accordingly, we direct the superior court to reconsider this aspect of Bates's sentence. Conclusion With the exception of the restriction on Bates's parole eligibility, the judgement of the superior court is AFFIRMED. We REMAND Bates's case to the superior court so that the superior court can reconsider whether Bates's eligibility for parole should be restricted under AS 12.55.115. If, on reconsideration, the superior court concludes that Bates's eligibility to apply for parole should not be restricted, the superior court should modify the judgement to reflect this, and the superior court should notify this Court of its decision. We will then close this appeal. If, on the other hand, the superior court again concludes that Bates's parole eligibility should be restricted, the superior court should issue supplemental findings to support that decision, and the superior court should forward a copy of those findings to this Court. In that event, the parties shall have 30 days to file simultaneous memoranda addressing the superior court's findings and discussing whether those findings justify the restriction on Bates's parole eligibility. After this Court receives the parties' memoran-da, we will resume our consideration of the parole restriction issue. . See AS 11.41.100(a) and AS 11.31.100(a). . See AS 12.55.125(b). But see AS 12.55.015(D), which declares that a sentencing court must order the forfeiture "of a deadly weapon that was in the actual possession of or used by the defendant during the commission of a crime involvin E domestic violence". . Williams, 895 P.2d at 99. . Id., 895 P.2d at 105. . Ibid. . RR., 919 P.2d at 755. . Id. at 758. . Ibid. (quoting Williams, 895 P.2d at 105). . Williams, 895 P.2d at 105.

11683377

Elliott REID, Appellant, v. David WILLIAMS, M.D., Appellee

Reid v. Williams

1998-10-02

No. S-7839

453

463

964 P.2d 453

964

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

Before COMPTON, EASTAUGH, FABE and BRYNER, JJ.

Elliott REID, Appellant, v. David WILLIAMS, M.D., Appellee.

Elliott REID, Appellant, v. David WILLIAMS, M.D., Appellee. No. S-7839. Supreme Court of Alaska. Oct. 2, 1998. P. Dennis Maloney, Maloney & Haggart, Anchorage, for Appellant. Roger F. Holmes, Biss & Holmes, Anchorage, for Appellee. Before COMPTON, EASTAUGH, FABE and BRYNER, JJ.

6167

39255

OPINION EASTAUGH, Justice. I. INTRODUCTION Elliott Reid sued Dr. David Williams for medical malpractice and prevailed at trial. Applying AS 09.55.548(b), the superior court subtracted Reid's medical expenses paid by Reid's insurer from the jury's medical expenses award. Concluding that it was a reasonable legislative response to a perceived medical malpractice insurance crisis, we reject Reid's argument that the statute violates his substantive due process rights. Concluding that the classification between doctors and other tort defendants bears a fair and substantial relation to attainment of a legitimate government objective, we reject his argument that the statute violates his equal protection rights. We also conclude that it was not an abuse of discretion to deny Reid's motion for enhanced attorney's fees and actual costs. We therefore affirm on all issues. II. FACTS AND PROCEEDINGS Complaining of a sense of fullness in his ear, Elliott Reid was seen by Dr. David Williams in 1992. Williams diagnosed a peri-lymphatic fistula and performed surgery. A small bone in Reid's inner ear was dislocated during the surgery. Reid brought a medical negligence action against Williams. A court-appointed Expert Advisory Panel (Panel) of three local physicians evaluated Williams's care. It concluded that Williams's treatment was inappropriate because Reid's symptoms did not support the diagnosis, and that the medical care injured Reid. In December 1995 Reid served Williams with a $75,000 offer of settlement. Reid filed an amended complaint the next day, adding claims for unfair business practices, fraud, breach of the duty of good faith and fair dealing, and punitive damages. A twelve-day trial commenced in May 1996. At the close of Reid's case, the superior court dismissed the claims added in the amended complaint. The case went to the jury on the negligence claim. The jury found that Williams was negligent in deciding to perform the surgery, and that his negligence was a legal cause of injury to Reid. The jury awarded Reid damages of $25,000, including $6,553 for past medical expenses. As the prevailing party, Reid moved for an award of enhanced attorney's fees and actual costs. The court denied Reid's motion for enhanced attorney's fees and ordered that the fees be - calculated according to the Civil Rule 82(b) formula on a "Contested With Trial" basis. The fees awarded were $3,790.82 (20% of $18,954.10). The court denied Reid's motion to recover actual costs and awarded costs "in accordance with the rules as determined by the clerk." Reid was eventually awarded $9,464.51 in costs. Citing AS 09.55.548(b), Williams argued that Reid's jury award for past medical expenses should be reduced by approximately $6,000 because Reid's insurer had paid his medical bills. The superior court reduced the award for past medical expenses from $6,553 to $507.10, the amount of medical expenses not paid for by Reid's insurer. Reid appeals these rulings. III. DISCUSSION A. The Constitutionality of AS 09.55.518(b) The superior court reduced the damage award for past medical expenses by the amount Reid's insurer paid. The court applied AS 09.55.548(b), which abrogates the collateral source bar found in AS 09.17.070. Reid claims that AS 09.55.548(b) violates his constitutional rights to substantive due pro cess and equal protection. He asks us to set aside the trial court's order offsetting his damages by the amount paid by his medical insurance. 1. Waiver The parties dispute whether Reid waived any constitutional challenge by only briefly stating the constitutional argument to the court below. We will not ordinarily consider issues unless they were raised in the trial court. Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987). Reid only briefly identified his due process and equal protection arguments. He articulated his constitutional challenge in a footnote in a trial court memorandum, and alluded to the alleged constitutional violation in a later memorandum. Reid cited no cases or legal authority. He provided no analysis of the issue apart from asserting that the statute was unconstitutional because it treats medical care providers differently from other defendants. Despite the brevity of Reid's superior court arguments, we will consider the constitutional issues. The arguments do not depend on new or controverted facts, and are identical to the theory that Reid presented below. See O'Neill Investigations, Inc. v. Illinois Employers Ins., 636 P.2d 1170, 1175 n. 7 (Alaska 1981). Moreover, Williams will not be prejudiced if we consider the statute. Williams responded to the merits of Reid's constitutional arguments during the proceedings below, and the parties have fully briefed the issues on appeal. 2. Substantive due process Reid argues that reducing the damage award under AS 09.55.548(b) violated his substantive due process rights guaranteed by article I, section 7 of the Alaska Constitution. The party asserting a substantive due process challenge must demonstrate that the statute bears no reasonable relationship to a legitimate governmental purpose. See, e.g., Chiropractors for Justice v. State, 895 P.2d 962, 968 (Alaska 1995); Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 351 (Alaska 1988). To determine whether reducing Reid's damages violated his substantive due process rights, we first examine the stated purpose of AS 09.55.548(b) and assess whether the statute is reasonably related to that stated purpose. Alaska Statute 09.55.548(b) was enacted in 1976 as part of a comprehensive medical malpractice reform package intended to alleviate a perceived crisis in medical malpractice insurance costs. Although there is little specific discussion of AS 09.55.548(b) in the legislative history, the House and Senate committee files for the 1976 medical malpractice reform legislation show that AS 09.55.548(b) was part of "a comprehensive system to furnish hospitals and individual health care providers with medical malpractice insurance." Plumley v. Hale, 594 P.2d 497, 498-99 n. 3 (Alaska 1979) (citing Chapter 102 SLA 1976). In Keyes v. Humana Hospital Alaska, Inc., 750 P.2d 343, 351-52 (Alaska 1988), we upheld a different section of the medical malpractice reform statute in the face of a substantive due process challenge. The plaintiff in Keyes challenged AS 09.55.536, which required her to present her case to an expert advisory panel. See id. We noted that "[i]t is virtually beyond dispute" that the panel review procedures were enacted "to alleviate the effects of the malpractice insurance crisis." Id. We concluded that AS 09.55.536 was a reasonable legislative response to the perceived medical malpractice insurance crisis, and thus did not deny substantive due process. Id. at 352. Alaska Statutes 09.55.548(b) and 09.55.536 were part of the same medical malpractice reform package, Chapter 102 SLA 1976, and were enacted for the same purpose, to alleviate the medical malpractice insurance crisis. See AS 09.55.548(b); AS 09.55.536; Plumley, 594 P.2d at 498-99 n. 3. As we held in Keyes, the desire to alleviate the medical malpractice insurance crisis was a legitimate governmental purpose behind the medical malpractice reform statutes. We next consider whether AS 09.55.548(b) is reasonably related to that purpose. By abrogating the collateral source rule, AS 09.55.548(b) reduces the medical malpractice damage awards for which some health care providers and their insurers are liable. It is reasonable to conclude that reducing damage awards would help reduce the cost of medical malpractice insurance. We conclude that alleviating a perceived medical malpractice insurance crisis was a legitimate, public purpose for enacting AS 09.55.548(b), and that the statute was reasonably related to that goal. Reid cannot make out his substantive due process claim because he has not disproved the factual justification for the statute. See Keyes, 750 P.2d at 352. Reid concedes that responding to a perceived medical malpractice insurance crisis was a legitimate government purpose. He fails to disprove the relationship between the statute and medical malpractice insurance rates, and instead attacks the statute on policy grounds. He argues that the statute benefits negligent doctors who injure insured patients, and that this benefit for negligent doctors is not reasonably related to the governmental purpose of controlling medical malpractice insurance rates. He further argues that the statute shifts plaintiffs' medical expenses to plaintiffs, or their employers, through increased insurance premiums. Reid's arguments fail to disprove the relationship between the statute and the medical malpractice insurance rates. Even if the statute unwisely benefits negligent doctors or shifts the costs away from defendants, the statute may still reduce medical malpractice insurance rates. See Kenai Peninsula Borough, 527 P.2d at 452 (stating that it is "not a court's role to decide whether a particular statute or ordinance is a wise one" in substantive due process analysis). We conclude that Reid has not met the burden of establishing that there is no "conceivable legitimate public policy" for the enactment of the statute. See Kenai Peninsula Borough, 527 P.2d at 452. His substantive due process challenge therefore fails. 3. Equal protection Reid argues that AS 09.55.548(b) violates the equal protection clause of the Alaska Constitution because it unlawfully discriminates between negligent doctors and other tort defendants. A medical malpractice plaintiffs right to damages is an economic interest, which traditionally receives only minimal protection under our equal protection analysis. See, e.g., Chiropractors for Justice, 895 P.2d at 969 (applying minimum level of judicial scrutiny to equal protection claim regarding health care provider's economic interest in receiving payment under Workers' Compensation Act). Reid has not demonstrated that the statute discriminates against a class that receives heightened protection under the Equal Protection Clause. We therefore review AS 09.55.548(b) under the lowest level of equal protection scrutiny. Because the interest affected is economic and receives minimal judicial protection, the legislative classification must bear only a "fair and substantial relation" to attaining "legitimate" government objectives. In Keyes we considered an equal protection challenge to a different section of the medical malpractice reform package, AS 09.55.536, which required medical malpractice plaintiffs to present their cases to expert advisory panels. See Keyes, 750 P.2d at 357- 58. We upheld the statute under low-level scrutiny, concluding that it bore a fair and substantial relation to the statute's legitimate purposes of alleviating the effects of the malpractice insurance crisis, and reducing the cost and improving the availability of health care. See id. at 352, 357-58. We noted that the plaintiff was unable to show that the statute was unlikely to reduce litigation over malpractice claims. See id. at 358. The analysis we followed and the conclusion we reached in Keyes apply here as well, as AS 09.55.536 and AS 09.55.548(b) were enacted as part of the same reform package. The interests involved and the greater statutory purpose, i.e., to control medical malpractice insurance costs and increase the availability of health care, are identical. We were persuaded by the legislative history in Keyes, and we are persuaded by this same legislative history today. Reducing medical malpractice damage awards by the amount received by a malpractice victim's insurer lessens the liability of health care providers. This in turn reduces the cost of insuring the health care providers. We therefore conclude that AS 09.55.548(b) bears a fair and substantial relation to the goal of alleviating the medical malpractice insurance crisis. Cf. Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744, 753 (Ariz.1977) (stating that "[b]y scaling down the size of jury verdicts by the amount of collateral benefits the plaintiff may have received, the legislature could reasonably assume that a reduction in premiums would follow"). Reid states that we rejected an argument that reducing insurance costs was a legitimate purpose in Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 272 (Alaska 1984) ("We hold that the asserted goal of lowering insurance premiums can have no independent force in the state's attempt to meet its burden under the equal protection clause."). Brown is inapposite. We there evaluated a statute that adjusted workers' compensation benefits paid to recipients who moved out of state. Id. The statute burdened the constitutional right to travel, and was therefore subjected to a "very high" level of scrutiny. Id. at 273-74. No analogous fundamental right is burdened by AS 09.55.548(b). Our observation in Brown that "savings will always be achieved by excluding a class of persons from benefits they would otherwise receive" is less significant when the statute creating such "savings" is subject to rational basis review rather than "very high" scrutiny. See Brown, 687 P.2d at 272. Reid also argues that AS 09.55.548(b) fails the "nexus test" under Turner Construction Co. v. Scales, 752 P.2d 467, 470-72 (Alaska 1988). In Turner we invalidated a statute that provided a six-year statute of repose on suits against design professionals. Applying the "fair and substantial relationship test," we noted that the statute was intended to encourage construction by shielding design professionals from future liability, and concluded that this governmental purpose was legitimate. Id. at 471. The statute, however, shifted liability from design professionals to owners and material suppliers. We reasoned that any incentive to build that the statute might give design professionals was offset by the disincentive to build that the statute gave owners and material suppliers. We invalidated the statute because it discouraged these third parties from building and therefore interfered with the statute's stated purpose of encouraging construction. Id. at 472. Turner is distinguishable from the instant case. Turner turned upon the fact that the statute's effect on third parties actually chilled construction, an effect that was at odds with the stated purpose of the statute. Here, there is no chilling effect that interferes with the stated purpose of the statute, which is to decrease the costs of medical malpractice liability insurance for health care providers. The central flaw in Turner was that the statute intended to encourage construction had the opposite effect. Reid has not shown that this statute, which was in tended to lower malpractice insurance rates, actually has the opposite effect and instead raises malpractice insurance rates. Turner is therefore inapposite. Reid seems to imply that AS 09.55.548(b) may have become unconstitutional because the conditions which potentially justified its enactment in 1976 no longer exist or have been ameliorated. Reid has not shown that there is merit to that position. We must also assume that the statute helped alleviate the conditions perceived by the legislature in 1976; to abrogate the statute would potentially restore conditions that convinced the legislature to adopt the statute in the first place. For these reasons, Reid's equal protection challenge fails. We note that courts elsewhere have discussed equal protection attacks on statutes that abrogate the collateral source rule for medical malpractice suits. Courts that have reviewed the statutes under a version of the rational basis test have found that the statutory distinctions between malpractice plaintiffs and defendants and other tort plaintiffs and defendants were reasonably related to the legislative objectives of lowering the costs of medical malpractice actions, and ensuring the continued availability of health care for the public. By contrast, courts that have employed a more stringent standard of equal protection review, such as "heightened scrutiny" or "means scrutiny," have invalidated statutes that abrogate the collateral source rule for medical malpractice defendants. Reid's other equal protection arguments were raised for the first time on appeal, and are therefore waived. See Arnett v. Baskous, 856 P.2d 790, 791 n. 1 (Alaska 1993). B. Reid's Claim for an Enhanced Attorney's Fees Award Reid, the prevailing party, was entitled to an award of attorney's fees under Rule 82. A schedule fixes attorney's fees at twenty percent of the first $25,000 of a money judgment in a case that is "Contested With Trial." Alaska R. Civ. P. 82(b)(1). Following an amendment that became effective in 1998, a trial court may deviate from a scheduled award if, upon considering itemized factors, it "determines a variation is warranted." Alaska R. Civ. P. 82(b)(8). A trial court departing from the schedule must "explain the reasons for the variation." Id. The superior court awarded Reid attorney's fees under Rule 82(b)(1), and did not issue written findings. Reid first contends that the lack of findings renders the superior court's award unreviewable. We disagree. The superior court was not required to issue findings of fact or otherwise explain its award because it awarded the attorney's fees prescribed by Rule 82(b)(1). There is a presumption that a prevailing plaintiff recovering a money judgment will receive fees in accordance with the schedule. See Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990) ("Attorney's fees awards made pursuant to the schedule of Rule 82 are presumptively correct."). Entry of the Rule 82(b)(1) award without fact findings was not error, and does not prevent us from reviewing the decision. Reid also argues that the superior court's refusal to award enhanced attorney's fees was an abuse of discretion. We address Reid's contentions in turn. 1. The parties' asymmetrical risks Reid argues that Rule 82 unfairly subjects plaintiffs and defendants to asymmetrical risks: he claims that if Williams had prevailed, Williams's Rule 82(b)(2) fees award would have been fifteen-to-twenty-five times greater than Reid's. Reid claims that this disparity between the prospective awards renders the trial court's $3,790.82 award "manifestly unreasonable"; he requests award of an "amount that approximates the lower end of the amount that Dr. Williams would have been entitled to under Alaska R. Civ. P. 82(b)(2) had he won." The asymmetry noted by Reid is an inherent result of using two different methods (percentage of damage award for prevailing parties who recover a money judgment and percentage of incurred attorney's fees for prevailing parties who do not) to calculate the presumptive Rule 82 attorney's fees awards. This asymmetry has its converse: assume a claimant recovers damages of $500,000 at trial. Ignoring prejudgment interest, Rule 82(b)(1) presumes an attorney's fee award of $52,500. Whether the trial lasts two days or twenty, the rule presumes the same award. If the defendant were to prevail in that ease after a two-day trial (assuming hypothetically twenty-eight additional days of pretrial preparation) the presumptive Rule 82(b)(2) award would be about $10,800 (30% x 30 days x 8 hours/day x $150/hour). This would be substantially less than the prevailing claimant's fee award. The disparity is the product of using, by necessity, two different methods to measure the presumptive awards. This necessity arises out of the conjunction of the purpose of Rule 82 — to partially reimburse prevailing parties for the fees they must pay their attorneys — and the difference in how these classes of litigants usually compensate their attorneys. Usually parties seeking money recoveries in tort eases pay their attorneys under contingent fee agreements requiring them to pay their counsel twenty-five to forty percent of the total recovery. And usually civil litigants not seeking money judgments pay their lawyers on an hourly basis. The presumptive Rule 82(b)(1) and (b)(2) fee awards bear some relationship to the fees these prevailing parties actually pay their attorneys. Using the example 'of the $500,000 recovery, the presumptive award of $52,500 is probably about twenty-five to thirty percent of the lawyer's contingent fee. This corresponds to the presumptive Rule 82(b)(2) percentage (thirty percent of actual fees if a case goes to trial). Thus, any asymmetry between attorney's fees awards to these classes of parties is the natural consequence of using two different methods to calculate these classes of parties' Rule 82 awards. This asymmetry is usually both acceptable and benign. The asymmetry inherent for "normal" cases does not in and of itself justify a departure from Rule 82(b)(1). But circumstances in a given case may bring the factors listed in Rule 82(b)(3) into play. Although Rule 82(b)(3) does not specify asymmetry as a basis for relief, it lists ten factors — among them, "the complexity of litigation," "the length of trial," "vexatious or bad faith conduct," and "the relationship between the amount of work performed and the significance of the matters at stake" — that adequately address the pertinent considerations. We discuss some of these factors below. 2. Williams's alleged intransigence and intent to deter future litigants A trial court may depart from the Rule 82(b)(1) schedule if a party is guilty of "vexatious or bad faith conduct." Alaska R. Civ. P. 82(b)(3)(G). Reid alleges that Williams "escalated" litigation costs by refusing to settle, and that Williams's insurance carrier pursued a "scorched earth litigation policy" to deter future litigants. Williams contends that Reid's high expenses are due to Reid's litigation strategy, which complicated a "garden variety medical malpractice case." Reid has not shown that the superior court abused its discretion by denying Reid's motion for enhanced attorney's fees on this ground. The superior court was in the best position to determine whether a party's behavior was excessively litigious or in bad faith. The superior court also had discretion to consider Reid's unsuccessful claims when it awarded attorney's fees. See Alaska State Bank v. General Ins. Co., 579 P.2d 1362, 1369 (Alaska 1978) (stating that it was not manifestly unreasonable for the court to take into account that it ruled against the prevailing party on one of the contested issues when determining attorney's fees and costs). The superior court did not abuse its discretion by refusing to award enhanced attorney's fees based on Williams's refusal to settle. See Van Dort v. Culliton, 797 P.2d 642, 645 (Alaska 1990) (stating that trial court may not consider settlement negotiations as reasons to reduce or increase an attorney's fee award). Rule 68 did not apply, and the final judgment in the ease was much less than the settlement offers. Rule 68 applies when "the judgment finally rendered by the court is not more favorable to the offeree than the offer." Alaska R. Civ. P. 68(b). 3. The complexity of this medical malpractice action A lawsuit's complexity may justify departure from the Rule 82(b)(1) schedule. Alaska R. Civ. P. 82(b)(3)(A). Reid argues that medical malpractice cases are more complex than ordinary negligence cases, and that this was an unusually complex malpractice case. The complexity of this case, however, did not mandate enhanced attorney's fees. See Moses v. McGarvey, 614 P.2d 1363, 1370 (Alaska 1980) (stating that complexity is only one factor, which alone does not justify full attorney's fees). The superior court did not abuse its discretion by failing to award enhanced attorney's fees based on this factor. 4. The alleged chilling effect of the nominal award Reid argues that the nominal award of attorney's fees will deter access to the courts and discourage non-wealthy individuals from litigating good faith claims. He contends that individuals cannot seek judicial redress if the cost of litigating outweighs the damages awarded. Williams argues that Reid simply miscalculated the value of the case and that Williams should not shoulder the expense of Reid's miscalculation. We have expressed concern that "financially ruinous" fee awards against good faith civil litigants could deter access to the courts. See, e.g., Malvo v. J.C. Penney Co., 512 P.2d 575, 586-88 (Alaska 1973); see also Van Huff v. Sohio Alaska Petroleum Co., 835 P.2d 1181, 1189 (Alaska 1992) (Matthews, J., dissenting); Bozarth v. Atlantic Richfield Oil Co., 833 P.2d 2, 5-7 (Alaska 1992) (Matthews, J., dissenting). In those cases, we were concerned that fee awards levied against losing litigants could deter access to the courts. This case is different because it involves a claim that inadequate fee awards to winning litigants will deter access to the courts. Reid in essence argues that he should not have to bear his own litigation expenses, which he claims are so high that Williams should be required to reimburse him. In comparison, the unsuccessful plaintiffs in Malvo and Bo-zarth claimed that they should not have to bear the defendants' litigation expenses, which they claimed were financially ruinous. Although it may seem that both situations equally chill judicial resolution of disputes, we see a fundamental difference. In Malvo and Bozarth, the question was whether it was an abuse of discretion to shift very substantial litigation expenses to the losing plaintiffs. Here the question is whether it was an abuse of discretion to decline to shift additional expenses from the party that incurred them. Even though a party's litigation expenses are in part the result of the opponent's litigation tactics, to a large extent the party has the ultimate control over the way it assesses its case and litigates its position. Rule 82 already provides protection for the winning litigant who is forced to respond to an opponent's excessive efforts or bad faith litigation tactics. See, e.g., Alaska R. Civ. P. 82(b)(3)(F) ("the reasonableness of the claims and defenses pursued by each side") & (G) ("vexatious or bad faith conduct"). But the record does not compel a conclusion that it was error not to apply this factor here. Civil Rule 82 also distinguishes between parties in the position of Reid — who was awarded allegedly inadequate attorney's fees — and non-prevailing parties — who must pay attorney's fees to their opponents. A trial court may consider "the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts." Alaska R. Civ. P. 82(b)(3)(I) (emphasis added). Because Reid is the prevailing party, this factor does not justify departing from the Rule 82(b)(1) schedule. Some of the factors noted by Reid would have justified an enhanced fee award if the superior court had found that they were relevant to this ease. It was not obliged to do so, and we conclude that the superior court did not abuse its discretion by declining to deviate from the Rule 82(b)(1) schedule. C. Costs Finally, Reid argues that the superi- or court should have awarded him actual costs because he alleges that: (1) Williams escalated the costs by hiring three expert witnesses; (2) it is hard to find an in-state expert, as Alaska physicians will not testify against each other; and (3) the case was complex. The trial court may award costs in excess of the Administrative Rule 7(c) guidelines if a prevailing plaintiff demonstrates that the defendant has shown "bad faith or reprehensible conduct." Id. (citing Fairbanks AT. Star Borough v. Tundra Civil Rules 79 and 83 and Administrative Rule 7(c) govern costs absent justification for deviation. No rule or case calls for deviation here, and Civil Rule 94 does not require relaxation of the rules. We conclude that the superior, court did not abuse its discretion by refusing to award Reid's actual costs. See also Hickel v. Southeast Conference, 868 P.2d 919, 931-32 (Alaska 1994) (finding no abuse of discretion when trial court refused to award full expert witness fees); Municipality of Anchorage v. Frank Coluccio Coustr. Co., 826 P.2d 316, 331 (Alaska 1992) (stating that prevailing party is limited to expert witness fees specified in Rule 7(c), absent bad faith or reprehensible conduct). IV. CONCLUSION For the reasons discussed above, we AFFIRM. MATTHEWS, C.J., not participating. . AS 09.55.548(b) states that, Except when the collateral source is a federal program that by law must seek subrogation and except death benefits paid under life insurance, a claimant may only recover damages from the defendant that exceed amounts received by the claimant as compensation for the injuries from collateral sources, whether private, group, or governmental, and whether contributory or noncontributory. Evidence of collateral sources, other than a federal program that must by law seek subrogation and the death benefit paid under life insurance, is admissible after the fact finder has rendered an award. The court may take into account the value of claimant's rights to coverage exhausted or depleted by payment of these collateral benefits by adding back a reasonable estimate of their probable value, or by earmarking and holding for possible periodic payment under (a) of this section that amount of the award that would otherwise have been deducted, to see if the impairment of claimant's rights actually takes place in the future. . Issues of constitutional interpretation are questions of law which we review de novo. Revelle v. Marston, 898 P.2d 917, 925 n. 13 (Alaska 1995). . See also Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 115 (Alaska 1990); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). . "No person shall be deprived of life, liberty, or property, without due process of law." Alaska Const, art. I, § 7. . We have described the analysis for determining a substantive due process claim as follows: Substantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose. It is not a court's role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people. The constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based on some rational policy. A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. The party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification. Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974) (citations omitted). .One text describes the medical malpractice insurance crisis as follows: In response to the recent vast increase in the number of medical malpractice actions brought against physicians, hospitals, and related personnel, the necessary costs of defense, and high damage awards, many malpractice liability insurers have either greatly raised their premiums or declined to offer coverage. As a result, some physicians and other health care providers have threatened to limit or curtail their practices and services, creating what has been referred to as a medical malpractice insurance "crisis." In order to meet this challenge and to continue to provide proper health care for their citizens, a number of states have enacted remedial legislation. In general, the expressed purposes of these statutes are to make professional health care insurance available at a reasonable cost, and to establish a system through which a victim who has sustained injury or death caused by a health care provider can be assured of a prompt adjudication of the claim and a fair and reasonable recovery. David W. Louisell & Harold Williams, 2 Medical Malpractice ¶ 18.02, at 18-10 to 18-11 (1992 & Supp.1993). . Legislation abrogating the common law collateral source rule was enacted throughout the United States in order to alleviate the insurance crisis. See id. ¶ 18.02, 18.05 & Appendix B (discussing and cataloging twenty-three state statutes that abrogate collateral source rule for malpractice suits); see also Michael D. McCafferty & Steven M. Meyer, Medical Malpractice: Bases of Liability § 5.07, at 139 (1985 & Supp.1996) (discussing different state approaches to reducing damages by payments from collateral sources); James J. Watson, Annotation, Validity and Construction of State Statute Abrogating Collateral Source Rule as to Medical Malpractice Actions, 74 A.L.R.4th 32, 37 (1989). . A version of this argument has been successful in equal protection challenges to statutes that abrogate the collateral source rule for medical malpractice cases. Courts have invalidated the statutes under heightened scrutiny analysis, in part because plaintiffs were burdened by the restrictions on their rights to recover damages, and this burden unreasonably conferred upon malpractice defendants the benefit of a limitation on liability for damages. See cases cited infra note 16. . Courts in other jurisdictions have considered substantive due process attacks on statutes that similarly abrogate the collateral source rule for medical malpractice suits. See Watson, supra note 7, at 48-50. Several courts have found the statutes to be a reasonable legislative response to a perceived crisis in medical malpractice insurance rates. See id..; see also Ferguson v. Garmon, 643 F.Supp. 335, 342 (D.Kan.1986); Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744, 753 (Ariz.1977); Fein v. Permanente Med. Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, 684-86 (Cal.1985); Bernier v. Burris, 113 Ill.2d 219, 100 Ill.Dec. 585, 497 N.E.2d 763, 775 (Ill.1986). But see Arneson v. Olson, 270 N.W.2d 125, 137, 133 (N.D.1978) (invalidating the provision as "arbitrary and unreasonable and discriminatory," and lacking in "close correspondence between statutory classification and legislative goals"). . Williams did not argue on appeal that Reid had no property interest in a damage award against Williams entitled to due process protection. We would have felt compelled to reach that issue, or require supplemental briefing, before reaching any conclusion that the statute was invalid with respect to Reid because it violated his due process rights. Cf. Eastin, 570 P.2d at 753 (observing that abrogation of the collateral source rule did not deprive the medical malpractice claimant of any property interest accorded protection by the due process clause of the United States Constitution); Fein, 211 Cal.Rptr. 368, 695 P.2d at 686 (stating that a plaintiff had no vested interest in a particular measure of damages and thus the fact that the provision might reduce a plaintiff's award did not render the provision unconstitutional so long as the measure was rationally related to a legitimate government interest). . Article I, section 1 of the Alaska Constitution provides in relevant part that "all persons are equal and entitled to equal rights, opportunities, and protection under the law." . See McConkey v. Hart, 930 P.2d 402, 407-08 (Alaska 1996) (reviewing under rational basis review a statute that allegedly discriminated between tort victims). . See Chiropractors for Justice v. State, 895 P.2d 962, 972 (Alaska 1995); Pan-Alaska Constr., Inc. v. State, 892 P.2d 159, 162 (Alaska 1995); see also Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994) (reviewing statute that created classifications between different tort defendants under "fair and substantial relationship" test). . As discussed above, AS 09.55.548(b) was part of a comprehensive measure adopted to control the rising costs of medical malpractice insurance and to furnish hospitals and individual health care providers with medical malpractice insurance. See Plumley v. Hale, 594 P.2d 497, 498 n. 3 (Alaska 1979). We consider the challenged provision in light of the purposes of the entire act. See Chiropractors for Justice, 895 P.2d at 969. .See, e.g., Ferguson v. Garmon, 643 F.Supp. 335, 342 (D.Kan.1986); Baker v. Vanderbilt Univ., 616 F.Supp. 330, 332 (M.D.Tenn.1985); Eastin, 570 P.2d at 753; Fein, 211 Cal.Rptr. 368, 695 P.2d at 684-86; Pinillos v. Cedars of Lebanon Hosp. Corp., 403 So.2d 365, 367-68 (Fla. 1981); Bernier, 100 Ill.Dec. 585, 497 N.E.2d at 768, 775; Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550, 559 (Iowa 1980); see also Lambert v. Sisters of Mercy Health Corp., 369 N.W.2d 417, 423-24 (Iowa 1985) (upholding statute under rational basis review even when hospital is self-insured and does not pay malpractice insurance premiums). . See, e.g., Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058, 1063-66, 1068 (Kan.1987); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 831, 835-36 (N.H. 1980); Arneson v. Olson, 270 N.W.2d 125, 133, 137 (N.D.1978). . "An award of attorney's fees will only be reversed for an abuse of discretion, which exists if the award is arbitrary, capricious, manifestly unreasonable, or the result of an improper motive." Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska 1997). . See Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1331 (Alaska 1997) (affirming award of enhanced attorney's fees based on the trial court's finding that the defendant deliberately conducted a excessively litigious defense); Stone v. International Marine Carriers, Inc., 918 P.2d 551, 558 (Alaska 1996) (finding no abuse of discretion when trial court denied prevailing defendant's motion for full attorney's fees when plaintiff "vigorously litigated an unresolved question"); Wickwire v. McFadden, 633 P.2d 278, 281 n. 6 (Alaska 1981) (stating that trial court is in best position to determine whether party acted in bad faith for purposes of attorney's fees awards). . We will overturn an award of costs only if the superior court clearly abused its discretion. Municipality of Anchorage v. Frank Coluccio Constr. Co., 826 P.2d 316, 332 (Alaska 1992). . See id. at 331 (stating that complexity of case is irrelevant for purposes of calculating costs). Tours, Inc., 719 P.2d 1020, 1036-37 (Alaska 1986) (overturning award of expert fees in excess of guidelines and stressing that the case did not involve "those extraordinary circumstances where the losing party should be punished")). .Alaska Rule of Civil Procedure 94 provides: "These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice."

11691021

Robert L. HORCHOVER, Appellant, v. Sylvia F. FIELD, f/k/a Sylvia F. Horchover, Appellee

Horchover v. Field

1998-10-16

No. S-7989

1278

1285

964 P.2d 1278

964

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

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

Robert L. HORCHOVER, Appellant, v. Sylvia F. FIELD, f/k/a Sylvia F. Horchover, Appellee.

Robert L. HORCHOVER, Appellant, v. Sylvia F. FIELD, f/k/a Sylvia F. Horchover, Appellee. No. S-7989. Supreme Court of Alaska. Oct. 16, 1998. Loren Domke, Loren Domke, P.C., Juneau, for Appellant. R. Scott Taylor, Rice, Volland & Taylor, P.C., Anchorage, for Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

4595

28541

OPINION COMPTON, Justice. I. INTRODUCTION Robert Horchover refused to abide by certain provisions of a Property Settlement Agreement that the superior court had incorporated into the decree that divorced him and Sylvia Horchover, now known as Sylvia Field. Sylvia moved the superior court: (1) to order Robert to show cause why he should not be held in contempt of court; (2) to order him to provide an accounting and to transfer certain funds to her; and (3) to reduce his arrearages to judgment. The superior court reduced Robert's arrearages to judgment, required him to provide a full accounting of two investments and of his dentistry practice's pension plan, and required him to turn over to Sylvia some artwork. After having paid the judgment, Robert requested and received clarification from the superior court regarding the accounting and artwork requirements. Robert only appeals the order requiring him to provide Sylvia with an accounting. We conclude that the superior court's order requiring Robert to provide an accounting was a valid order enforcing the divorce decree, not an invalid order adding terms to the parties' Property Settlement Agreement incorporated into that decree. Furthermore, we conclude that the order was not an abuse of the court's discretion. II. FACTS AND PROCEEDINGS In November 1992 Robert L. Horchover and Sylvia F. Horchover-Field were divorced after thirty-three years of marriage. The Decree of Divorce provided that the assets and liabilities of the parties shall be divided in accordance with the Property Settlement Agreement and Qualified Domestic Relations Order ["Property Settlement Agreement"] executed by the parties and previously filed with this court and that the terms and conditions of the Property Settlement Agreement shall be fully incorporated into this decree of divorce. The superior court concluded that the "Property Settlement Agreement [was] a fair and equitable distribution of the parties' property, assets and debts." The Property Settlement Agreement provides that Sylvia shall receive (among other things): 5. Sixty-five percent (65%) of the net value of the combined profit sharing plans of the two parties. This value shall be calculated by deducting the outstanding loan obligations from the gross amount of the two combined plans. 10. Fifty percent (50%) of all income attributable to the parties from [their investment in] the Waterfront Hotel project. 11. The sum of Two Thousand Dollars ($2,000.00) per month payable by husband to wife from January 1, 1995, with the last payment due November 1, 1996. This payment is a distribution of marital property. 12. Fifty percent (50%) of all income attributable to husband's share of [a] licensing agreement with Schwarb Foundry, presently held by 3S Pacific Corporation. Robert did not begin making the $2,000 payments to Sylvia on January 1, 1995, as required by paragraph 11 of the Property Settlement Agreement. In June Robert's attorney sent a letter to Sylvia's attorney alleging that Sylvia had diverted money from Robert's dentistry business in 1988 and 1989. The letter stated, in part: Dr. Horchover recognizes his responsibilities under the Settlement Agreement, but feels strongly that it was implicit in the settlement process that both parties deal honestly with each other and make full disclosure of relevant asset information. If Sylvia has withheld material information on the source of funds in [her personal] account, or has gone further and affirmatively misrepresented the source of these funds, I think she will be in a very poor position to enforce any rights under the Settlement Agreement. Please ask your client to cooperate. Dr. Horchover would like to resolve this issue in the next couple of months. Thank you. In August 1996 Sylvia moved for "an order to show cause why [Robert] should not be held in contempt of court; for an order requiring an accounting; and for transfer, of certain funds; and for reduction of arrearag-es to judgment." She requested an accounting of the dentistry practice's pension profit sharing plan, the Juneau Waterfront Hotel project (Waterfront Project), the Schwarb Foundry Project, and two other investments no longer at issue. In her memorandum in support of her motion, Sylvia stated that "it appears that there are additional stocks and accounts receivable which have not been identified or transferred. [I] seek[ ] an accounting of all assets and transactions within the pension plan and profit sharing plans from the date of divorce to the present and an immediate transfer of all sums and assets due [me]." Additionally, Sylvia requested an accounting of the other investments because, "[g]iven the history of this divorce, [she][was] concerned that these assets may be modified or liquidated in a way that prevents her from discovering money which is due her." Robert opposed Sylvia's motion. Regarding the request for accounting, Robert stated: Sylvia raises a number of issues which go beyond the terms of the property settlement. She has asked [me] for an accounting of various notes receivables due the retirement plan, for an accounting of two worthless equities held by the plan, and for an accounting of the Juneau Waterfront Hotel Project and an accounting of the Schwarb Foundry project. Robert argued that he had fully complied with the property settlement "and [was] not required to furnish any of the accountings requested, with the exception of the Schwarb Foundry where he is the general project manager." In January 1997 the superior court granted Sylvia's motion to reduce Robert's arrear-ages to a judgment and ordered him to provide to her an accounting of the Robert L. Horchover, D.D.S., Pension and Profit Sharing Plans and transfer to [Sylvia] all sums in those plans which were awarded to her in the property settlement agreement, . [and to provide] a full accounting of the activities of the Juneau Waterfront Hotel Project and the Schwarb Foundry Project. Robert moved the court to clarify the order requiring him to provide Sylvia with an accounting. In May 1997 the superior court issued its Order re Clarification. It ordered Robert to provide Sylvia, within twenty days of the date of the order, with: 1. A complete accounting of all assets and transactions in the pension and profit sharing plan from the date of divorce to the date of this order. [Robert] shall bear the full cost of such accounting. 2. A copy of the books of the Juneau Waterfront Hotel project or its successor entities. 3. A complete copy of the books of the Schwarb Foundry project or its successor entities. This appeal followed. III. DISCUSSION A. Standard of Review The parties disagree on the proper standard of review. Robert argues that because the Property Settlement Agreement is a bilateral contract, and the superior court interpreted it in requiring him to provide an accounting, this court should review the superior court's order de novo. De novo review is appropriate, Robert argues, because "[t]he issue is whether the trial court had jurisdiction to interpret the property settlement and to imply conditions and obligations not anticipated at the time of the settlement or agreed to by the parties." Robert cites to our decision in Kendler v. Kendler, 816 P.2d 193 (Alaska 1991). Sylvia, however, argues that we should review the superior court's order for an abuse of discretion. She states that the court was merely enforcing its divorce decree, which incorporated the Property Settlement Agreement, and therefore the abuse of discretion standard applies. Whether the superior court added terms to the Property Settlement Agreement or was merely enforcing the agreement, as incorporated into its divorce decree, is a question of law that we review de novo. See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). On questions of law, our duty "is to adopt the rule of law which is most persuasive in light of precedent, reason, and policy." Id. If the superior court's order was merely enforcing the Property Settlement Agreement, as incorporated into its divorce decree, we review the order for an abuse of discretion. See Meyeres v. Meyeres, 705 P.2d 921, 922-23 (Alaska 1985) (reviewing for an abuse of discretion the trial court's ruling in favor of the ex-husband's motion to enforce the terms of the divorce decree). See also Roh-weder v. Fleetwood Homes of Or., Inc., 767 P.2d 187, 190 (Alaska 1989) (reviewing for an abuse of discretion discovery sanctions imposed by a superior court in an effort "to enforce its discovery orders"); Sanguinetti v. Sanguinetti, 628 P.2d 913, 916 (Alaska 1981) (reviewing for an abuse of discretion a trial court's decision to deny "the mother's motion to enforce the home study order and to reopen the case"). If the order instead implicitly modified or added terms to the agreement, then it is void. While we have held that property settlement agreements are bilateral contracts, that does not require us to adopt Robert's argument that we should review the superior court's order de novo. We have repeatedly held that a property settlement agreement incorporated into a divorce decree mei'ges with that decree. See, e.g., Cedergreen v. Cedergreen, 811 P.2d 784, 786 (Alaska 1991) (stating that a party could enforce terns of a property settlement agreement by moving the court to enforce its divorce decree because "the parties' settlement was explicitly merged into its decree"); Stone v. Stone, 647 P.2d 582, 584 (Alaska 1982) ("A property settlement incorporated into a divorce decree is merged into the decree, so that the rights of the parties derive from the decree, not the agreement."); O'Link v. O'Link, 632 P.2d 225, 228 (Alaska 1981) ("A property division incorporated within a divorce decree is a final judgment and is modifiable to the same extent as any equitable decree of the court."). Furthermore, we have explicitly stated that "[p]rinciples of contract law are not applicable in an attempt to obtain relief from a final judgment [when the final judgment comprises] the terms of a property settlement incorporated into a divorce decree." Stone, 647 P.2d at 585. Thus, if the superior court was merely enforcing the Horchovers' divorce decree, we review the superior court's actions as we would any order issued by the superior court in an attempt to enforce one of its final decrees — that is, for an abuse of discretion. We must first determine, de novo, whether the superior court added terms to the Property Settlement Agreement when it required Robert to provide Sylvia with an accounting, or whether the superior court was merely enforcing the agreement, which had merged with the divorce decree. If we conclude that the superior court was merely enforcing the divorce decree, we must then determine whether the superior court abused its discretion in so doing. If, however, we conclude that the superior court added terms to the Property Settlement Agreement when it ordered Robert to supply an accounting, then the superior court exceeded its jurisdiction by modifying a bilateral contract, and we must vacate the order. For the following reasons, we conclude that the superior court's order was merely enforcing the divorce decree; it did not abuse its discretion in requiring Robert to provide Sylvia with an accounting. B. The Superior Court's Order Requiring Robert to Provide an Accounting Merely Serves to Enforce the Property Settlement Agreement. 1. The parties' arguments Robert's argument that he should not be required to provide Sylvia with an accounting-can be summed up as follows: "The property settlement does not impose any obligation on Robert to provide Sylvia with accountings or records or documents for either project or for the corporate pension plan." Because the Property Settlement Agreement is devoid of any accounting requirements, Robert argues, the superior court exceeded its jurisdiction by adding such a requirement to the agreement. Robert cites Kendler to support his argument. In Kendler, the superior court incorporated Joe and Marie Kendler's property settlement agreement in a divorce decree. See Kendler, 816 P.2d at 193. Joe failed to abide by paragraph 10 of the agreement; thus, Marie moved for "an order to show cause, seeking to hold Joe in contempt for 'failure to comply with terms of the property settlement incorporated into the judgment and decree.' " Id. at 194. The superior court ordered Joe to conform with paragraph 10 and, because of " 'possible bad faith on Joe's part,' " also required him to, among other things, provide an accounting to Marie " 'on an annual basis for all assets set out in . the property settlement agreement.' " Id. at 194-95. "The superior court's final order," we noted, "which incorporates the terms and conditions of its original order, in effect, imposes seven conditions upon Joe." Id. at 195. Joe appealed, arguing that "the superior court has, without authority, amended the property settlement agreement as incorporated in the divorce [decree] by adding terms which were not contemplated by the parties." Id. We agreed. See id. We reviewed the superior court's order as one which "interpreted paragraph 10 of the property settlement agreement." Id. at 196. We concluded that, because the .agreement did not require Joe to provide an accounting (or any of the other things ordered by the superior court), the superior court's final order "[could] be viewed as adding additional terms to the divorce decree." Id. at 196. Specifically, we characterized the court's actions as not merely enforcing the divorce decree, or interpreting a vague contract provision, but instead added terms as Joe had complied with paragraph 10 at the time the court issued the additional requirements. See id. Robert argues that "Kendler is directly on point." "Viewed objectively," Robert states, "no provision in the Horehover settlement can be interpreted as burdening Robert with any accounting expenses or responsibilities or with any records disclosure duties." Therefore, by "requiring Robert to furnish any information or accountings to Sylvia regarding either the pension plan or the two projects, the Superior Court added additional terms to the contract." Sylvia, however, argues that the superior court's order merely enforced the "property division incorporated into the parties' divorce decree, [and therefore] the post-judgment order was well within the trial court's jurisdiction." The superior court, Sylvia argues, was merely enforcing the decree by providing her "with a means of determining the value of the assets awarded to her." Sylvia contends that requiring an accounting is justified in light of Robert's "history of vexatious noncompliance with the settlement agreement." Sylvia distinguishes Kendler. She asserts that, in contrast to the order in this case, which only seeks "compliance with the express terms of the parties' settlement agreement," the superior court in Kendler added terms that went beyond mere enforcement. In this case, Sylvia argues, the superior court was merely enforcing the agreement because [a]t the time of the order, [Robert] had not fully complied with the decreed property division. Assets in the profit sharing plan had not been transferred and [Sylvia] had received nothing from the Juneau Waterfront Hotel and Schwarb Foundry projects. The only way for [her] to ascertain and receive her awarded share, of these assets was for her to receive an accounting of the profit sharing plan and copies of the books for the projects. In his reply brief, Robert denies noneom-pliance with the Property Settlement Agreement, aside from his initial, now-resolved, refusal to pay the required $2,000 monthly payments. Robert states that he did not fail to "turn over 65 percent of the profit sharing plan." He refused initially to turn over part of a private loan repayment as a setoff for the missing $41,418 [that he alleged Sylvia had embezzled from his dentistry business]. Sylvia did receive a $96,540 payment before her enforcement motion was filed and received an accounting of all funds due. 2. The superior court's order The superior court's language discloses that it requested an accounting from Robert solely for the purpose of enforcing the divorce decree. First, in its original order requiring Robert to provide an accounting, the superior court stated that Robert shall provide an accounting of the pension plan and "shall transfer to [Sylvia] all sums in those plans which were awarded to her in the property settlement agreement." This language suggests that the court was not altering the agreement, but rather requiring Robert to pay Sylvia the sums that the Property Settlement Agreement in fact had awarded her. Second, pursuant to Robert's motion requesting a clarification of the original order requiring him to provide an accounting of the pension plan, the Waterfront Project, and the Schwarb Foundry Project, the superior court specified that Robert must provide Sylvia with "[a] complete accounting of all assets and transactions in the pension and profit sharing plan from the date of divorce to the date of this order." (Emphasis added.) Sylvia alleged that Robert was not abiding by the agreement, i.e., that she was not receiving sixty-five percent of the pension plan funds, as the agreement required. In order for the superior court to enforce its divorce decree, it first had to ascertain whether Sylvia had received the funds due her. To determine whether Sylvia had received the designated funds, the court had to be current on the pension plan's fiscal activity. While requiring an accounting of the pension plan may appear as an additional requirement, in reality it was the only way for the court to determine whether Robert was honoring the divorce decree. While Robert relies heavily on Kendler to support his argument that the superior court was not merely enforcing its divorce decree when it required him to provide an account ing, Kendler is distinguishable. In Kendler we noted that Joe had fully complied with the express terms of the property settlement agreement, and therefore the superior court's requirements were in emir because they constituted new terms to the agreement. See Kendler, 816 P.2d at 196. We specifically stated that we were "[flocusing, as we must, on the time when the superior court issued its final order [enforcing the decree]." Id. Here, Sylvia contends, as of the time the court issued its enforcement order, that Robert had not fully complied with the Property Settlement Agreement, and there were pension plan funds due her. Unlike in Kendler, where we readily determined that Joe was in full compliance with the property settlement agreement, in the instant case an accounting of the pension plan is required to determine whether Robert is in full compliance with the divorce decree. We conclude that the superior court was simply enforcing its decree of divorce when it ordered Robert to provide an accounting of the pension plan. Similarly, we conclude that the superior court's order requiring Robert to turn over a copy of the Waterfront Project books also served to enforce its divorce decree. The Property Settlement Agreement provided that Sylvia should receive "[flifty percent (50%) of all income attributable to the parties from the Waterfront Hotel Project." Based on Robert's assertions that the project was not producing any income, Sylvia- has received no payments from the project. For the court to enforce the terms of the Property Settlement Agreement, it first had to determine whether the Waterfront Project was defunct. Therefore, the court's order did not disturb the parties' agreement to share the projects' proceeds evenly; it just provided a way to determine if any divisible proceeds existed. C. It Was Not an Abuse of Discretion to Require Robert to Provide Sylvia with an Accounting of the Pension Plan and a Copy of the Waterfront Project Books. Based on our conclusion that the superior court's order requiring Robert to provide an accounting of the dentistry's pension plan and a copy of the Waterfront Project books was merely an order enforcing its divorce decree, we must now determine whether the court abused its discretion in making that order. We conclude that it did not. We will find that the superior court abused its discretion if we "ha[ve] a definite and firm conviction that a mistake has been made." Department of Health & Soc. Servs. v. Alaska State Hosp. & Nursing Home Ass'n, 856 P.2d 755, 765 (Alaska 1993). "This standard of review bids us give considerable deference to the decision of the trial judge." Ryan v. State, 899 P.2d 1871, 1379 (Alaska App.1995). We have stated that, when a party brings a motion to enforce a divorce decree, "[t]he superior court has inherent power, and also the duty to enforce its divorce decrees." Cedergreen, 811 P.2d at 786. Furthermore, we have stated that this duty applies in cases when it is "enforcing its final decree [which consists of] the parties' settlement [that it had] explicitly merged into its decree." Id. Based on our precedent which favors a superior court's efforts to enforce its divorce decrees, the court did not abuse its discretion by ordering Robert to provide an accounting as a means to ensure that Sylvia is receiving the funds that the Property Settlement Agreement allocates to her. Robert had repeatedly chosen to only selectively abide by the terms of the Property Settlement Agreement. For instance, Robert refused to pay Sylvia $2,000 per month as required by paragraph 11 of the agreement because he suspected that she had embezzled money from his dentistry business. Robert "offered to comply with [paragraph 11] if [Sylvia] furnishe[d] a satisfactory explanation [of] and evidence for" the alleged "highly irregular diversions of marital funds." Robert's actions show his willingness to honor the Property Settlement Agreement on his own terms, and only when he is "satisfied" with Sylvia's actions. Furthermore, in opposing Sylvia's motion for an order to show cause, Robert stated that "Sylvia received $96,540 in late August and is due an additional $51,873.48 less set offs for Robert's share of the Clark note proceeds and any diversions of marital funds." (Emphasis added.) This statement reveals that Robert, once again, was willing to selectively self-enforce the terms of the Property Settlement Agreement as he saw fit. In sum, Robert has shown an indifference to the legal force of the Property Settlement Agreement that was incorporated into the court's divorce decree. Robert is not excused, as he appears to believe, from honoring the court's decree except when he is unilaterally satisfied with Sylvia's actions. An accounting of the pension plan and provision of a copy of the Waterfront Project books appears to be a reasonable, and least costly, way of ensuring that Robert is honoring the court's decree. While requiring Robert to provide an accounting of the pension plan may be expensive, the court's order is not an abuse of discretion, in light of Robert's demonstrated willingness to ignore his obligations under the agreement-. IV. CONCLUSION We conclude that the superior court's order requiring Robert to provide Sylvia with an accounting of the pension plan and a copy of the Waterfront Project and Schwarb Foundry Project books is a valid attempt to enforce the divorce decree. Further, we conclude that the order was not an abuse of discretion. We AFFIRM the superior court's order. . Sylvia served as the bookkeeper for Robert's dentist office. . As a result of Robert's concession in superior court that he is obligated to provide Sylvia with an accounting of the Schwarb Foundry Project, we will not consider the argument to the contrary that he makes on appeal. See Toney v. City of Anchorage Police Dep't, 950 P.2d 123, 126 (Alaska 1997) (finding persuasive that "a number of other courts have held that when a party concedes a fact before the trial court, the party may not later contest it"). . Robert also filed two motions for reconsideration, a discovery motion, and a motion to enforce the Property Settlement Agreement. The court denied them. . In his points on appeal, Robert contests the superior court's award of attorney's fees, its denial of his motion to enforce the Property Settlement Agreement, and its order requiring him to provide Sylvia with accountings. In his brief, Robert explicitly abandons the first two issues and only argues the third, i.e., the requirement that he provide Sylvia with accountings. . In Kendler we quoted with approval Justice Matthews's dissent in Stone v. Stone, 647 P.2d 582 (Alaska 1982), which stated that "[a] consent judgment is a bilateral contract wherein the parties adjust their differences by mutual consent.'' Kendler v. Kendler, 816 P.2d 193, 196 (Alaska 1991) (quoting Stone, 647 P.2d at 588) (Matthews, J., dissenting). . This initial step accommodates the concerns that Justice Matthews raised in his dissent in Stone; this court later adopted his reasoning in Kendler. See supra note 5. . In her memorandum in support of her motion to show cause, Sylvia requested an accounting of the pension plan because in June 1993 Robert received repayment of an installment note which was an asset of the profit sharing and pension plan. [Her] portion of that plan was not transferred to her. According to a letter to Robert from the plan administrator, as of October 25, 1995, [her] share of that payment . was $96,078. In addition, it appears that there are additional stocks and accounts receivable which have not been identified or transferred. Sylvia, therefore, sought "an accounting of all assets and transactions within the pension and profit sharing plans from the date of divorce to the present and an immediate transfer of all sums and assets due her." Sylvia's only basis for seeking an accounting of the Schwarb Foundry and Waterfront projects was that she was "concerned that these assets may be modified or liquidated in a way that prevents her from discovering money which is due her. " . In his opposition to Sylvia's motion to show cause, Robert stated that he had fully complied with the "property settlement and is not required to furnish any of the accountings requested, with the exception of the Schwarb Foundry where he is the general project manager." In support of his argument that he was in full compliance with the property settlement agreement, Robert stated that "Sylvia received $96,540 in late August and is due an additional $51,873.48 less set offs for Robert's share of the Clark note proceeds and any diversion of marital funds." .Also in his reply brief, Robert argues for the first time that the Qualified Domestic Relations Order (QDRO) provided that "Sylvia as the alternate payee 'was responsible for payment of 65% of the Plan administrative costs.' These costs include 'accounting' and 'other normal plan administration expenses.' " (Emphasis added). Therefore, Robert argues, the superior court's orders requiring Robert to bear the full expenses of an accounting "substantially changed" the QDRO. We do not consider this argument for two reasons. First, Robert raises it for the first time in his reply brief. See, e.g., Danco Exploration, Inc. v. State, 924 P.2d 432, 434-35 n. 1 (Alaska 1996)("[N]ew arguments presented for the first time in reply briefs are considered waived."); Sumner v. Eagle Nest Hotel, 894 P.2d 628, 632 (Alaska 1995) (same). Second, Robert did not present this argument to the superior court. See, e.g., Lewis v. State, 565 P.2d 846, 853 (Alaska 1977) ("[W]e will not address on appeal issues not presented to the trial court."); Leigh v. Lundquist, 540 P.2d 492, 497 (Alaska 1975) (same). . As stated at supra note 2, because Robert conceded below that he is obligated to provide Sylvia with an accounting of the Schwarb Foundry Project, we need not address his contrary argument on appeal. . While Robert's appeal professes that any order from the court that would in some way alter his obligations under the Property Settlement Agreement is void, he was willing to ignore a requirement of that same Agreement when it benefitted him to do so.

11683123

Jason P. WRIGHT, Appellant, v. Kelly D. SHORTEN, Appellee

Wright v. Shorten

1998-09-11

No. S-8133

441

445

964 P.2d 441

964

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

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

Jason P. WRIGHT, Appellant, v. Kelly D. SHORTEN, Appellee.

Jason P. WRIGHT, Appellant, v. Kelly D. SHORTEN, Appellee. No. S-8133. Supreme Court of Alaska. Sept. 11, 1998. Tara N. Logsdon, Tull & Associates, Palmer, for Appellant. No appearance by Appellee. .Before MATTHEWS, C.J., COMPTON, EASTAUGH, FABE, and BRYNER, JJ.

2225

13411

OPINION FABE, Justice. I. INTRODUCTION Kelly Shorten filed for sole legal custody of her daughter, alleging that Jason Wright was the father and seeking child support from him. Upon receipt of the filing, Wright, proceeding pro se, wrote to the superior court denying paternity. Because it did not view Wright's response as an answer, the court entered default judgment against him. Wright filed an Alaska Civil' Rule 60(b) motion to set aside the default judgment, arguing that his letter constituted an answer to Shorten's complaint and that any defect in it's form resulted from mistake or excusable neglect. The superior court denied Wright's motion and he appeals. Because Wright's letter should have been treated as an answer to Shorten's complaint, we reverse and remand. II. FACTS AND PROCEEDINGS Jason Wright and Kelly Shorten were married in February 1991 in California. Shorten gave birth to Sally in December 1992. The birth certificate lists Wright as the child's father. At some point after Sally's birth, the couple separated. Shorten moved with Sally to Alaska in September 1993. In May 1995 Shorten filed a petition for dissolution of marriage. The petition was granted in September 1995. Because Wright was never actually served with the petition, and notice was by publication, the court made no findings regarding custody, visitation, or child support. In April 1996 Shorten filed a "Complaint for Custody," claiming that Wright was Sally's "natural" father and seeking child support from him. Wright was served with the complaint in California on July 25, 1996, and responded five days later in a letter to the court. He denied paternity, referring to medical documentation in support of his claim: I must declare that I am not the natural parent of [Sally] Wright. I am currently investigating a facility that will test Kelly [Shorten], [Sally] and myself to establish scientific proof that I am not a parent. I have medical documentation of the Blood Types of all three of us. It is obvious with just this amount of information that I am not the Father.... I will contact the Court and the Plaintiff as soon as I find a Facility that will test myself and the child. Please send me any information/advice as to exactly how to proceed with this issue. Any other evidence needed will be provided upon request (Blood types, etc.). The standing master in the case treated Wright's letter as an appearance, not as an answer. In October 1996 Wright wrote to the court to explain that he had arranged for genetic testing for Shorten, Sally, and himself, and to notify the court of his new address. It appears that the court may not have received this letter, as evidenced by the court's statement at a later date that, after Wright's July 30, 1996 letter, "[n]o further response or pleadings were received by the court from defendant until . on or about February 7,1997." In November 1996 Shorten applied for entry of a default and default judgment against Wright. Although it appears that Shorten tried to send a copy of the application to Wright, he claims that he was never notified of the default proceedings. Nothing in the record indicates that Wright was notified. The clerk of court entered a default later that month on the ground that Wright had "failed to plead in or otherwise defend this action." A default hearing was held before a standing master on December 10, 1996. The standing master concluded that the parties were Sally's natural parents, that Shorten should receive custody, and that Wright should be ordered to pay $375 a month in child support. On December 30, 1996, the superior court issued a child custody and support order incorporating the standing master's findings of fact and conclusions of law. On February 1, 1997, counsel entered an appearance for Wright for the first time. Six days later, Wright filed a formal answer to the complaint for custody in which he reiterated his denial of paternity. In a motion filed the same day, Wright provided evidence that his and Shorten's blood types are "0 positive" and that Sally's is "A negative." He also produced a medical text stating that "if both parents are blood type 0, only children with blood type 0 can be conceived." The clerk of court returned the answer to counsel as untimely because default had already been entered. Wright filed a Rule 60(b) motion for relief from default judgment in March 1997, arguing that his letter denying paternity constituted an answer adequate to avoid default and that he had never been served with Shorten's default application. The standing master then issued a report recommending that Wright's claims be rejected. The superior court accepted the master's recommendation and affirmed the default judgment. Wright appeals the court's denial of his Rule 60(b) motion. Shorten has not filed a brief in this appeal. III. DISCUSSION A. Standard of Review We review the denial of Wright's Rule 60(b) motion for abuse of discretion. "We will not find an abuse of discretion unless we are left with a definite and firm conviction on the whole record that a mistake has been made." Furthermore, absent unusual circumstances, "we will not reverse the superior court's denial of a Rule 60(b) motion as an abuse of discretion where the movant has not made a showing of a meritorious defense." B. It Was Error to Deny Relief under Rule 60(b). Wright argues that the default judgment against him should have been set aside under Rule 60(b)(1) because his July 30, 1996 letter should have been treated as an answer and because he had a meritorious defense to the claim that he owed child support. We agree. Rule 60(b)(1) provides that a court may relieve a party from a final judgment for "mistake, inadvertence, surprise or excusable neglect." "The purpose of [Rule] 60(b) is to provide relief from judgments which, for one reason or another, are unjust." Entry of default judgment precludes a trial on the merits of an issue. Although we recognize that setting aside a final judgment may disrupt the judicial process, we have estab lished that a trial on the merits is preferable to a default judgment. 1. It was error not to treat Wright's letter as an answer. We turn first to Wright's contention that the trial court erred by treating his July 30,1996 letter as an appearance instead of as an answer. Wright argues that his denial of paternity in the letter "constituted a complete defense to the relief sought against him."' He characterizes any technical defect in his letter as one of mistake, inadvertence, or excusable neglect under Rule 60(b)(1). Pleadings should be construed liberally. Where an affirmative defense "provides the opponent fair notice of the nature of the defense," it is adequately pleaded. The Alaska Rules of Civil Procedure provide that "[a]ll pleadings shall be so construed as to do substantial justice," that averments "shall be simple, concise and direct," and that "[n]o technical forms of pleading or motions are required." Moreover, we hold the pleadings of pro se litigants "to less stringent standards than those of lawyers." Where a pro se litigant's default results from " 'lack of familiarity with the rules,' " rather than " 'gross neglect or lack of good faith,' " and where the litigant is "unversed in the rules of civil procedure," setting aside a default judgment may be warranted. Indeed, in some cases a trial court has a duty to inform pro se litigants of defects in their pleadings and to give them an opportunity to remedy those defects. Given the general rule that pleadings are construed liberally, and the relaxed standards for pro se pleadings, Wright's letter should have been considered an answer to Shorten's complaint. It is unclear what deficiencies the superior court saw in Wright's letter. The letter was timely and responded directly to the allegation that Wright was Sally's biological father. It provided fair notice of the nature of Wright's defense. We attribute any technical deficiencies in complying with the rules to Wright's inexperience, not bad faith or gross neglect. In fact, Wright's request for information "as to exactly how to proceed" illustrates his inexperience and good faith. Given our determination that Wright established mistake or excusable neglect under Rule 60(b)(1), we need not reach his alternative claim that he did not receive notice of Shorten's default application and that his failure to respond provided a separate basis for finding excusable neglect. We note, however, that when a party has appeared in a proceeding, as the trial court concluded that Wright had, notice of an application for default is required under Rule 55(a)(2), and nonreceipt of service "may justify a finding of excusable neglect." 2. Wright presented a meritorious defense. A Rule 60(b) movant usually must show a meritorious defense. A showing of a meritorious defense requires more than " 'a perfunctory statement that a meritorious defense exists.'" The defaulting party must show that the result of granting relief may differ from the outcome of allowing the default judgment to stand. This requirement may not apply where relief is predicated on a trial court's fundamental procedural error. In this case, even assuming that the requirement does apply, we agree with Wright that his "defense of non-paternity is a meritorious defense." In response, to Shorten's complaint, Wright squarely denied that he is Sally's biological father. Further, he presented medical evidence in support of his claim. The result of granting relief is likely to differ from the outcome of allowing the default judgment to stand. IV. CONCLUSION Because Wright has shown mistake or excusable neglect and has alleged a meritorious defense to the claims against him, we REVERSE the denial of Wright's Rule 60(b) motion and REMAND this matter for further proceedings. . Sally is a pseudonym. . This figure was based upon 20% of Wright's income, which Shorten estimated at $30,000 a year; the standing master estimated that Wright would pay 25% of his income in taxes. . See Johnson v. Doris, 933 P.2d 1139, 1142 (Alaska 1997) (citation omitted). . Id. . Balchen v. Balchen, 566 P.2d 1324, 1328 n. 11 (Alaska 1977). . Alaska Rule of Civil Procedure 60(b) provides in relevant part: Mistakes — Inadvertence—Excusable Neglect— Newly Discovered Evidence — Fraud—Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;.... . Wellmix, Inc. v. City of Anchorage, 471 P.2d 408, 411-12 n. 13 (Alaska 1970) (citation omitted). . See Hertz v. Berzanske, 704 P.2d 767, 770-71 (Alaska 1985). . See Peter Pan Seafoods, Inc. v. Stepanoff 650 P.2d 375, 380 (Alaska 1982). . See Gamble v. Northstore Partnership, 907 P.2d 477, 482 (Alaska 1995). . Id. . AÍaska R. Civ. P. 8(f). . Alaska R. Civ. P. 8(e)(1). . Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987). . Kennedy v. First Nat'l Bank of Fairbanks, 637 P.2d 297, 298 (Alaska 1981) (quoting Sanuita v. Hedberg, 404 P.2d 647, 651 (Alaska 1965)). . Rodriguez v. Rodriguez, 908 P.2d 1007, 1010 (Alaska 1995). . See Collins v. Arctic Builders & Home Ins. Co., 957 P.2d 980, 982 (Alaska 1998). . The superior court's denial of Wright's motion to set aside default judgment appears to have been influenced by its belief that Wright may have had access to counsel before sending his July 30, 1996 letter to the court: It is evident that defendant had access to legal counsel at least by July 9, 1996, even though no appearance was made until about February 7, 1997, since attorney Holliday made a request for a copy of the court file on the former date. If defendant had legal counsel in preparation of his July 30, 1996, letter, it is inexcusable that he did not make a proper and timely answer, as was finally attempted after default was entered. But. even if Wright contemplated hiring a lawyer or was assisted by counsel in preparation of his letter, we conclude that his denial of paternity constituted an answer sufficient to avoid default. . See Alaska R. Civ. P. 8(e)(1). . See Gamble, 907 P.2d at 482. . See Kennedy, 637 P.2d at 298. . Nothing in the record indicates that Wright was served with notice of Shorten's application. Wright has consistently maintained that he never received notice. Indeed, Shorten acknowledged in her "Answer to Motion for Relief from Default Judg[]ment" that although she had mailed the required notices of default proceedings to Wright, "some of these notices were returned" to her, further suggesting that Wright may not have received them. . 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1148 (2d ed.1987). . See Balchen, 566 P.2d at 1328 n. 11. . Melendrez v. Bode, 941 P.2d 1254, 1258 (Alaska 1997) (quoting Hertz, 704 P.2d at 772). . See id. (citation omitted). . Cf. Gregor v. Hodges, 612 P.2d 1008, 1009 (Alaska 1980) (concluding that party asserted meritorious defense to claim that she had fraudulently obtained property by arguing that she had purchased the property).

6988451

Jimmy Jack KORKOW, Appellant, v. STATE of Alaska, Appellee

Korkow v. State

2011-09-02

No. A-10488

932

936

258 P.3d 932

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Jimmy Jack KORKOW, Appellant, v. STATE of Alaska, Appellee.

Jimmy Jack KORKOW, Appellant, v. STATE of Alaska, Appellee. No. A-10488. Court of Appeals of Alaska. Sept. 2, 2011. Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Mara E. Michaletz, Assistant District Attorney, Adrienne Bachman, District Attorney, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

2167

13743

OPINION COATS, Chief Judge. Jimmy Jack Korkow stabbed his wife sixty-two times while their children slept nearby. Following this attack, Korkow turned himself in to the police. The jury convicted Korkow of murder in the first degree. Superior Court Judge Eric Aarseth sentenced Korkow to ninety-nine years of imprisonment. In addition, Judge Aarseth ordered that Korkow's eligibility for discretionary parole be restricted until he had served at least fifty years of his sentence. On appeal, Kor-kow does not attack his sentence of ninety-nine years of imprisonment, but he does attack the restriction on his parole eligibility. By statute, Korkow's ability to apply for discretionary parole is already restricted for thirty-three years, when he will be sixty-seven years old. He argues, and we agree, that the additional restriction on his parole is excessive. Factual and procedural background Korkow appeared at the Alaska State Trooper post in Soldotna early one morning in March 2005. He told the troopers that he had done something bad and requested that the police go to his apartment in Anchorage. Upon arriving at Korkow's Anchorage residence, officers discovered a lurid seene: Kor-kow's wife, Teresa, lay dead and wrapped in bedding on the living room floor. A knife protruded from Teresa's left ear, and another knife was buried to the hilt in her chest. Two more knives with bent blades were located near the body. In all, Teresa had been stabbed at least sixty-two times with four different knives. Police also discovered a broken tequila bottle near Teresa's body, and the autopsy revealed that she suffered blunt force trauma to her head. The Korkows' three children-aged six, seven, and eleven-were discovered asleep in the apartment. The eleven-year-old was in her closet. She later explained that she had gone into the closet to muffle the sounds of her mother screaming. The State indicted Korkow for murder in the first degree. Korkow was convicted on this charge in a jury trial conducted by Judge Aarseth. In sentencing Korkow, Judge Aarseth first observed that, while Korkow had a prior criminal record, it was "not that remarkable." He concluded that Korkow's prior offenses were "relatively innocuous." Giving Korkow the benefit of the doubt, he concluded that the murder was motivated by ex treme rage and that there was no evidence that Korkow had tortured his wife. Judge Aarseth primarily based Korkow's sentence on the brutality of his attack on his wife. He explained that Korkow had struck Teresa in the head with a blunt object, probably a tequila bottle, and had proceeded to stab her sixty-two times. Korkow had used very long knives, and each of the sixty-two deep wounds he inflicted could have caused serious injury or death. Judge Aarseth concluded that Korkow "focused on grievously mutilating [Teresa's] body," exhibiting a "very sick state of mind." Judge Aarseth concluded that the crime was additionally aggravated by the fact that Korkow's three children were in the home and at least one child knew something was happening, as she was found sleeping or hiding in her closet. He found that Korkow was a "worst offender" because he had killed his wife, with whom he was supposed to be in a trusting relationship, and because Korkow committed the murder in the presence of their children. Judge. Aarseth explained his decision to restrict Korkow's eligibility for parole. He concluded that, based upon the severity of the case and Korkow's lack of remorse, it was necessary to restrict Korkow's eligibility for parole in order to protect the public and Korkow's children. He pointed out that, by statute, Korkow would be eligible for parole after serving thirty-three and one-third years, when he would be almost seventy years old. Judge Aarseth stated that, at that time, Korkow's children would be in their forties and would, in all probability, have families of their own. He concluded that, to protect Korkow's children, as well as the rest of society, he needed to restrict Korkow's parole until he had served fifty years of his sentence. Why we conclude that the restriction on Korkow's parole was clearly mistaken By statute, Korkow had to serve one-third of his ninety-nine-year sentence before being eligible for discretionary parole. A sentencing judge has the authority to additionally restrict a defendant's eligibility for discretionary parole But, when the sentencing court imposes a lengthy sentence, "Alaska law presumes that questions of discretionary release are better left to the Parole Board, since the Board evaluates the advisability of parole release in light of the defendant's tested response to Department of Corrections rehabilitative measures. We have also indicated that a sentencing court should not place "inordinate emphasis . on predictions of possible future misconduct." These cases derive from the recognition that judicial officers have a limited ability to predict the future at the time of sentencing. In contrast, the Parole Board is an institution which is designed to review whether a defendant, after serving a portion of a sentence, can be safely released from imprisonment. Unlike the sentencing court, the Parole Board is in a position to make its decision after the defendant has served a substantial portion of the sentence, and in light of the defendant's observed behavior and attitude during years spent in the custody of the Department of Corrections. Deference to the Parole Board seems appropriate under the facts of this case. Judge Aarseth found that, although Korkow had a criminal record, his eriminal record was "not that remarkable" and was "relatively innocuous." In addition, Judge Aarseth concluded that Korkow's offense was motivated by rage, but there is no evidence that Korkow has a history of similar assaultive behavior. Korkow's assault on his wife was horrific. And the sheer brutality of the assault, coupled with the fact that it occurred while Korkow's children were asleep in the house, justified a substantial sentence. But Judge Aarseth sentenced Korkow to the maximum ninety-nine years of imprisonment. As we have pointed out, by statute, Kor-kow is not eligible for parole for thirty-three years, when he will be sixty-seven years old. And just because Korkow is eligible to apply for parole does not mean that he will be paroled. In fact, the Alaska Supreme Court has cautioned sentencing judges to sentence defendants "on the assumption that the entire term may be served." Judge Aarseth's decision to additionally restrict Korkow's eligibility for discretionary parole was based upon predictions that Kor-kow would be dangerous to the public and might constitute a danger to his then middle-aged children and their children. This is certainly a possibility, but a speculative one at best. Because the Parole Board will be making its decision far in the future, the Parole Board has significant advantages over the sentencing court in making this decision. We conclude that, given the record in this case, and given the length of Korkow's sentence of imprisonment, Judge Aarseth's decision imposing the additional restriction on Korkow's eligibility for discretionary parole is clearly mistaken. Korkow makes one additional argument: Korkow argues that Judge Aarseth erred in not making corrections to a psychological report which was attached to the presentence report. The record shows that Korkow waived this issue at sentencing by agreeing to file an addendum to the report. There is, however, one obvious misstatement in the psychological report that should be corrected: The report states that Korkow had a prior felony assault conviction. This is incorrect; the conviction was for misdemeanor assault. Conclusion The parole restriction is REVERSED, and the superior court shall amend the judgment and the psychological report as specified in this opinion. BOLGER, Judge, dissenting. . AS 11.41.100(@a)(1)(A). . AS 33.16.090(b)(1). . AS 12.55.115. . Cheely v. State, 861 P.2d 1168, 1181 (Alaska App.1993). . Skrepich v. State, 740 P.2d 950, 954 (Alaska App.1987); Maal v. State, 670 P.2d 708, 711 (Alaska App.1983). . Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980). . McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

6988216

Jerry W. LANGEVIN, Appellant, v. STATE of Alaska, Appellee

Langevin v. State

2011-06-03

No. A-10510

866

874

258 P.3d 866

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Jerry W. LANGEVIN, Appellant, v. STATE of Alaska, Appellee.

Jerry W. LANGEVIN, Appellant, v. STATE of Alaska, Appellee. No. A-10510. Court of Appeals of Alaska. June 3, 2011. Jane B. Martinez, Anchorage (under contract with the Public Defender Agency), and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ben Seekins, Assistant District Attorney, Fairbanks, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

4368

27379

OPINION MANNHEIMER, Judge. Jerry W. Langevin appeals his conviction for driving under the influence. This appeal presents three questions concerning the corpus delicti rule-the doctrine that a criminal conviction can not rest solely on the defendant's confession. The first question is an issue of law: whether, under Alaska law, the trial judge or the jury is the one who decides whether the government's evidence satisfies the corpus delicti rule. The second question is case-specific: whether, given the evidence presented at Langevin's trial, the State satisfied the corpus delicti requirement. The third question is again a question of law: when the State fails to satisfy the corpus delicti rule, but when the State's evidence, taken as a whole (i.e., including the defendant's confession), is sufficient to survive a motion for a judgement of acquittal, is the defendant's remedy outright dismissal of the criminal charge, or is it a retrial? For the reasons explained in this opinion and in this Court's prior decision in Dodds v. State, 997 P.2d 586 (Alaska App.2000), we conclude that the issue of corpus delicti is a question for the trial judge. In addition, for the reasons explained here, we conclude that the State's evidence in Lan-gevin's case was not sufficient to comply with Alaska's corpus delicti rule. Finally, we hold that when a trial judge erroneously rules that the State has satisfied the corpus delicti rule, and this Court reverses the trial judge's ruling on appeal, the defendant is entitled to a new trial but not outright dismissal of the charge. ~ Underlying facts In the early morning hours of November 27, 2008, officers of the Fairbanks police went to an apartment building in response to a report of a domestic dispute. This report was made by Langevin's girlfriend, Shari Kelly. Based on what the police discovered when they arrived, Langevin was charged with driving under the influence. Here is the State's evidence, presented in the light most favorable to the jury's verdict: When the police arrived, they found Lan-gevin in the hallway outside his apartment. Langevin told the officers that he had been standing outside for over an hour-that Kelly had taken his keys and had locked him out of their residence. This statement was verified when the police entered the residence and interviewed Kelly; they found the keys in her possession. Langevin was visibly intoxicated; in fact, he conceded to the officers that he was "three sheets to the wind". However, Lan-gevin also stated several times that he had not had anything to drink since he arrived home. Rather, Langevin said, he and Kelly had been drinking at the Manchu Bar earlier that night. According to Langevin, he and Kelly stayed at the bar until closing time (which, under Fairbanks law, would have been 8:00 am.), and then he started driving them home. In his statements to the police, Lan-gevin gave two accounts of how his driving ended. At one point in the interview, Lan-gevin indicated that he drove all the way home, at which point he stopped and said, "I'm not driving no more, period. I'm throwing the keys away." But at another point in the interview, Langevin said that Kelly grabbed the keys while he was driving (.e., while the keys were in the ignition) and turned the truck off. Langevin pointed out the truck that he had driven. However, the police did not check the truck to see if the engine was warm or to see if there was any other indication that the truck had been recently driven. . Langevin's statement that he had not been drinking since he came home was corroborated by the fact that the officers could not see any containers of alcoholic beverages in Lan-gevin's vicinity. At Langevin's trial, the State did not call Kelly as a witness, nor did the State present any other witnesses who had actually seen Langevin driving the truck, or who had seen Langevin and Kelly at the Manchu Bar earlier that morning. At the close of the State's case, Langevin's attorney asked the district court to enter a judgement of acquittal on the basis that the State had failed to satisfy the corpus delict rule, by failing to introduce evidence (apart from Langevin's statements to the police) to establish that the crime of driving under the influence had been committed. The district court denied this motion. Langevin's attorney also asked the trial judge to instruct the jury on the corpus delictki rule (i.e., telling the jurors that Langevin could not be convicted unless the jurors concluded that the State had satisfied the corpus delicti rule). The trial judge refused to give the requested instruction. The jury convicted Langevin of driving under the influence. Should the ultimate decision as to whether the government has satisfied the corpus delicti rule be made by the trial judge or, instead, the jury? Our decision in Dodds v. State, 997 P.2d 536, 589-548 (Alaska App.2000), contains a lengthy discussion of the corpus delict rule and the ways in which this rule has been interpreted in American jurisdictions. Some jurisdictions view corpus delicti as an eviden-tiary foundation that the government must lay in order to justify the introduction of the defendant's out-of-court confession. But other jurisdictions view corpus delicti as an implicit element of the government's proof (in cases where the government introduces evidence of the defendant's confession). Under the "evidentiary foundation" view, the trial judge decides whether the State has satisfied the corpus delicti rule (just as the judge decides other evidentiary questions). But under the "implicit element" view, the question of corpus delicti is decided at the end of the trial by the trier of fact (i.e., by the jury, unless the defendant has consented to a bench trial). Although we discussed this matter at length in Dodds, we did not have to decide which of these two approaches was the proper one under Alaska law-because Dodds raised the issue as a claim of plain error. Id. at 548. But in Langevin's case, the defense attorney explicitly asked to have the jury decide whether the State had satisfied the requirements of the corpus delicti rule, so we must now declare Alaska law on this issue. As we explained in Dodds, Alaska cases (both before and after statehood) have followed the "evidentiary foundation" approach to corpus delicti. That is, the corpus delicti rule has been interpreted in Alaska as a rule that defines the level of supporting evidence that the government must present if the government wishes to introduce the defendant's out-of-court confession for the truth of the matters asserted. Under this approach, [The] decision [regarding corpus delicti is] made by the trial judge before the case is submitted to the jury. The judge [assesses] the sufficiency of the State's evidence to prove the corpus delicti, and this decision [is] one of law-similar to the judge's assessment of the sufficiency of any other evidentiary foundation under Alaska Evidence Rule 104(a)-(b). Assuming the judge [rules] that the corpus delicti had been established, then, at the end of trial, the jury [considers] all of the evidence (including the defendant's confession) and [decides] whether the State [has] estab lished each element of the charged crime beyond a reasonable doubt. Dodds, 997 P.2d at 540. In his brief to this Court, Langevin points out that several other jurisdictions follow the "implicit element" approach to corpus delicti, and he urges us to do the same. But Lan-gevin does not address the prior Alaska cases on this issue-cases which follow the "evidentiary foundation" approach-nor does Langevin explain why those cases were wrongly decided or should now be abandoned on policy grounds. Moreover, in Dodds we pointed out that the "implicit element" approach presents a major difficulty-because, at the end of the trial, the jury is asked to decide whether the government has satisfied the corpus delicti rule after the jurors have already heard the defendant's confession: The "implicit element" approach to corpus delicti is difficult to reconcile with our law's normal view concerning a jury's ability to dispassionately assess a confession. Confessions can be powerful evidence, and courts have traditionally feared that, once a jury hears the defendant's confession, the jury will be unable to put aside this knowledge. One example of the cautious approach taken by courts when faced with admitting defendants' confessions is the Bruton rule-the rule that, when two or more defendants are being tried jointly, if one defendant has confessed and has implicated the co-defendants, that confession can not be admitted unless the confessing defendant takes the stand. [See Bruton v. United States, 391 U.S. 123, 126, 128-29, 88 S.Ct. 1620, 1622, 1624, 20 L.Ed.2d 476 (1968).] . The [Supreme] Court concluded that, once the jury heard that one of the defendants had confessed and had implicated one or more co-defendants, the jurors simply could not be trusted to obey an instruction that forbade them from considering that confession when assessing the guilt of the other defendants. The "implicit element" approach to the corpus delicti rule suffers from this same psychological difficulty. Under this approach, if the trial judge rules that corpus delicti is satisfied, the jury would hear the defendant's confession, only to later be asked to set the confession to one side and determine whether the government's remaining evidence is sufficient to establish the corpus delicti. One might doubt whether jurors, having heard the defendant's confession to a heinous crime, could dispassionately discharge this duty. Dodds, 997 P.2d at 540-41. Langevin's brief does not address this portion of the Dodds opinion. But Professor LaFave, in his treatise on eriminal law, characterizes this passage from Dodds as a cogent criticism of the "implicit element" approach. See Wayne R. LaFave, Substantive Criminal Law (Znd ed. 2003), § 1.4(b) & n. 33, Vol. 1, pp. 81-82. In sum, Alaska cases have historically employed the "evidentiary foundation" approach to corpus delicti, and there are good reasons to question the "implicit elements" approach. Accordingly, we now hold that Alaska law follows the "evidentiary foundation" approach to corpus delicti. Under the "evidentiary foundation" approach to corpus delicti, the decision as to whether the State has satisfied the corpus delicti rule is a decision for the trial judge, not the jury. Therefore, Langevin's trial judge correctly denied Langevin's request to have the jury decide this matter. Did the State satisfy the requirements of the corpus delicti rule in Langevin's case? The corpus delicti rule is usually described as the doctrine that a criminal conviction can not rest solely on the defendant's confession-that the government must present independent evidence tending to show that the charged crime did, in fact, occur (in the sense that the unlawful act described in the indictment or complaint was committed by someone ) But under Alaska law, the corpus delicti rule is more accurately described as the doctrine that "a eriminal conviction can not rest on an uncorroborated confession". Dodds, 997 P.2d at 588. In Alaska, the corpus de-licti rule does not focus on whether the government has produced independent proof of the criminal act, but instead on whether the government has produced substantive corroboration of the defendant's confession. The leading Alaska case on the corpus delicti rule is the supreme court's decision in Armstrong v. State, 502 P.2d 440 (Alaska 1972). In Armstrong, the supreme court acknowledged that there was a "wide diversity" in the formulation of the corpus delick rule among American jurisdictions. Id. at 447. The supreme court then declared: [The proper and most workable [corpus delicti] rule is the one laid down for the federal courts in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), where the [Supreme Court] held that [the] corroborative evidence need not be sufficient, independent of the [defendant's] statements, to establish the [cerimi-nal act]. Rather, the prosecution must introduce "substantial independent evidence which would tend to establish the trustworthiness of the [defendant's] statement." Id., [348 U.S.] at 98, 75 S.Ct. at 164, 99 L.Ed. at 109. Armstrong, 502 P.2d at 447. Thus, under Alaska law, the government must produce independent evidence that substantially corroborates the defendant's confession, but this evidence need not independently prove the commission of the crime. Drumbarger v. State, 716 P.2d 6, 12 (Alaska App.1986); McKenzie v. State, 776 P.2d 351 (Alaska App.1989). The McKenzie decision involved an appeal of a conviction for driving under the influence, and one of the issues raised on appeal was whether the State's evidence was sufficient to satisfy the corpus delicti rule This Court concluded that the corpus delicti rule was satisfied because the State presented evidence that the defendant had a blood aleo-hol level of .17 percent, and the State also presented cireumstantial evidence that corroborated the defendant's admission that she had been driving: the defendant was found in the front seat of a car that had apparently just gone off the road, and the defendant was the owner of this car. Id., 776 P.2d at 852. The corpus delicti question in Lan-gevin's case is more difficult because, unlike McKenzie, the State presented no independent evidence linking Langevin to the recent operation of the vehicle. In McKenzie, the State presented evidence that the defendant was found in the vehicle, that the vehicle belonged to her, and that the vehicle had apparently just gone off the road-strong circumstantial evidence that the defendant had recently been driving the vehicle. But in Langevin's case, there was no evidence that anyone observed Langevin in the truck, much less driving the truck. Moreover, as we explained earlier, the State did not call any witnesses to verify Langev-in's presence in the Manchu Bar earlier that morning (which would at least have been circumstantial evidence that Langevin came home in a motor vehicle). And the police who investigated this case did not check the truck to see if its engine was still warm, or to see if there was any other physical evidence in the truck to corroborate Langevin's admission that he had recently driven the vehicle. It is true that the police corroborated one significant aspect of Langevin's story: his keys were inside the apartment, in the possession of his girlfriend, Shari Kelly. But while Kelly's possession of the keys certainly corroborated Langevin's assertion that he had quarreled with Kelly, and that she had locked him out of the apartment, Kelly's possession of the keys did not corroborate the State's primary assertion that Langevin had recently driven the vehicle while he was under the influence. Apart from the inferences that might be drawn from Langevin's admissions to the police, there was no independent evidence to establish why Langevin and Kelly had quarreled, or when she had taken his keys. While the independent evidence was consistent with Langevin's claim that Kelly took his keys after he drove home under the influence, the independent evidence was just as consistent with the supposition that Kelly took the keys from Langevin as they were leaving the Manchu Bar, to prevent Langevin from assuming physical control of the vehicle while he was under the influence. Indeed, the independent evidence was also just as consistent with the supposition that Langevin and Kelly had not been to the Manchu Bar, but rather had been drinking at home, and then Kelly quarreled with Langevin and threw him out of the apartment-but kept his keys so that he would not be able to drive. Because this was the nature of the evi-denee at Langevin's trial, we are confronted with a question regarding the proper interpretation of the Alaska Supreme Court's decision in Armstrong. According to Armstrong, the Alaska version of the corpus de-licti rule requires the government to introduce "substantial independent evidence which would tend to establish the trustworthiness of the [defendant's] statement". 502 P.2d at 477. The question is how broadly the supreme court intended this formulation to be interpreted. Even though the State's independent evidence does not need to independently establish the commission of the crime, must the State's independent evidence at least corroborate the defendant's assertion that the crime was committed? Or did the supreme court mean that the State's independent evidence does not even have to be relevant to the issue of whether the crime was committed, as long as the independent evidence tends to corroborate the defendant's confession by lending support to other, collateral assertions contained in the defendant's statement-for example, Langevin's assertion that Kelly took his keys and locked him out of the apartment? If we were to give Armstrong this latter, broader interpretation, then Alaska's corpus delicti rule would be largely cut off from its common-law roots. The State would be under no obligation to produce independent evidence that the crime to which the defendant confessed actually occurred. Rather, the State would only be obliged to produce evidence tending to corroborate some aspect of the defendant's out-of-court statement-potentially, such collateral details as the defendant's description of the weather, or the defendant's description of what was served for dinner. We do not believe that the supreme court intended to depart so far from the common-law requirement of corpus delicti. We therefore interpret Armstrong to require the State to produce independent evidence that corroborates the defendant's assertion that the crime was committed. This independent evidence can be cireumstantial (as was the case in McKenzie ), but the evidence must be relevant to the issue of whether the crime was committed, and not simply to the issue of whether the defendant was speaking truthfully. The State's independent evidence in Lan-gevin's case fails this test. The State failed to satisfy the corpus delicti rule. What is Langevin's remedy, now that we have ruled that the State failed to satisfy the requirements of the corpus delicti rule? As we explained earlier in this opinion, and as we explained at some length in Dodds v. State, there are two schools of judicial thought regarding corpus delicti. Some courts follow the rule that corpus de-licti is the evidentiary foundation that must be laid if the government wishes to introduce evidence of a defendant's out-of-court confession. Other courts follow the rule that corpus delicti is an implicit element of the government's proof whenever the government relies on a defendant's out-of-court confession. We have concluded that Alaska is an "evidentiary foundation" jurisdiction. Thus, in Alaska, the corpus delicti rule bars the government from introducing a defendant's out-of-court confession (for the truth of the matter asserted) unless the government presents sufficient corroborating evidence to establish the trustworthiness of the confession with regard to whether the confessed crime was actually committed. In Langevin's case, the defense attorney did not object to the introduction of Langey-in's confession at the time it was offered into evidence. Rather, the defense attorney waited to make the corpus delicti objection until the prosecutor announced that the State was resting its case-in-chief. We do not, however, believe that the timing of the defense attorney's objection affected the parties rights. As Professor LaFave explains, the traditional form of the corpus delicti rule "may have barred the government from introducing the defendant's confession until it had first proved the corpus delicti", but "it is now generally accepted that a trial judge has the discretion to [allow] the government [to] introduce the defendant's confession before it has introduced the additional evidence that will establish the corpus delicti, so long as the corpus delicti is proved before the government rests." Substantive Criminal Law, § 1.4(b), Vol. 1, p. 81. Thus, if Langevin's attorney had raised the corpus delicti objection at the first opportunity-in other words, if the defense attorney had objected when the prosecutor offered Langevin's confession-the trial judge would have had the discretion to let the prosecutor introduce the challenged evidence, with the understanding that the prosecutor had to satisfy the corpus delicti rule by the end of the State's cage-in-chief. Instead, Langevin's attorney waited until the close of the State's case-in-chief to raise the issue of corpus delicti. At that time, the defense attorney argued that the State had failed to adequately corroborate Langevin's confession, and the defense attorney asked the trial judge to enter a judgement of acquittal. Had the trial judge sustained the defense attorney's corpus delicti objection at that time (in other words, had the trial judge ruled that the State's corroborating evidence was insufficient to establish the required evi-dentiary foundation for Langevin's confession), the judge would have had the discretion to allow the State to re-open its case to cure this deficiency. See LaFave, Substantive Criminal Law, § 1.4(b), Vol. 1, p. 31, and Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (8rd ed. 2007), § 24.6(b), Vol. 6, pp. 442-48. But this question never arose, because the trial judge ruled that the State had satisfied the corpus delicti rule. As we explained in the preceding section of this opinion, we agree with Langevin that the State failed to satisfy the corpus delicti requirement in Langevin's case. However, this does not mean that Langevin is entitled to a judgement of acquittal. We acknowledge that the majority position in this country is that a defendant is entitled to an acquittal if the government introduces evidence of the defendant's out-of-court confession but fails to satisfy the corpus delicti rule. See LaFave, Substantive Criminal Law, § 1.8(i), Vol. 1, pp. 97-98. But it must be remembered that most American jurisdictions follow the "implicit element" approach to corpus delicti. LaFave, § 1.4(b), Vol. 1, p. 81; Dodds, 997 P.2d at 540. Under this approach, corpus delicti is an element of the government's proof-and the general rule is that a defendant is entitled to a judgement of acquittal if the government fails to offer proof of each element of the crime. But under Alaska's "evidentiary foundation" approach to corpus delicti, the corroborating evidence is not an element of the State's proof; rather, it is the foundation that must be laid to make the defendant's confession admissible in evidence. The defendant may raise a corpus delicti objection when the government first offers the confession in evidence, or the defendant may wait until the government concludes its case-in-chief. But either way, the objection is of the same nature. A corpus delicti objection is not the same as an assertion that the government's evidence is legally insufficient to support a verdict in the government's favor. Rather, a corpus delicti objection is an assertion that the government should not be allowed, or should not have been allowed, to introduce the defendant's confession as part of its case. Because a corpus delicti objection does not challenge the sufficiency of the State's proof, but rather the admissibility of a portion of the State's evidence, when a defendant loses a corpus delicti objection at trial and then successfully pursues the issue on appeal, the defendant's remedy is not a judgement of acquittal. Instead, the defen dant's remedy is a new trial. As the United States Supreme Court held in Lockhart v. Nelson, 488 U.S. 33, 40-42, 109 S.Ct. 285, 290-92, 102 L.Ed.2d 265 (1988), and as this Court held in Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App.1992), a defendant who successfully contends on appeal that the trial judge should have excelud-ed a portion of the government's evidence can not then argue that the government's remaining evidence was insufficient to withstand a motion for judgement of acquittal. Rather, the sufficiency of the evidence is assessed in light of all the evidence presented at the defendant's trial-even the evidence that was wrongfully admitted. See LaFave, Israel, and King, Criminal Procedure, § 25. 4(c), Vol. 6, pp. 651-52. As we noted earlier, had the trial judge sustained Langevin's corpus delicti objection, the judge would have had the discretion to allow the State to re-open its case to cure this deficiency. And we can not know what additional evidence the State might have presented to corroborate Langevin's confession if the trial judge had ruled that the State's existing evidence was not sufficient for this purpose. See Houston-Hult, 843 P2d at 1265 n. 2. It is, of course, possible that a defense attorney might simultaneously raise a corpus delicti objection and a motion for a judgement of acquittal. In other words, a defense attorney might argue that the government had failed to sufficiently corroborate the defendant's confession to satisfy the requirement of corpus delicti and, at the same time, argue that the government's evidence taken as a whole (ie, even including the defendant's confession) was insufficient to justify a guilty verdict. But although Langevin's attorney referred to his motion as a request for a judgement of acquittal, it is clear that the defense attorney was not asserting that the State's evidence was insufficient even if Langevin's confession was taken into consideration. Rather, Lan-gevin's attorney was arguing that the State should not have been allowed to introduce Langevin's confession-and that, without the confession, the State's evidence was insufficient to support a guilty verdict. This latter portion of the defense attorney's argument was legally erroneous. Here, it is obvious that when Langevin's confession is taken into account, the State's evidence was sufficient to support a convietion. Even though we have held that the trial judge should have sustained Langevin's corpus delicti objection to the admission of the confession, it is irrelevant (for judgement of acquittal purposes) that the State's evidence would have been insufficient without Langevin's confession. Conclusion The judgement of the district court is REVERSED. Langevin is entitled to a new trial. . See Perovich v. United States, 205 U.S. 86, 27 S.Ct. 456, 51 L.Ed. 722 (1907); Castillo v. State, 614 P.2d 756 (Alaska 1980); Drumbarger v. State, 716 P.2d 6 (Alaska App.1986); McKenzie v. State, 776 P.2d 351 (Alaska App.1989). We discussed all four of these cases in detail in Dodds, 997 P.2d at 541-43. . See, eg., Wayne R. LaFave, Substantive Criminal Law (2nd ed. 2003), § 1.4(b), Vol. 1, p. 29. . 776 P.2d at 352.

6988087

WILLIAM P., Appellant, v. TAUNYA P., Appellee

William P. v. Taunya P.

2011-08-26

No. S-13993

812

819

258 P.3d 812

258

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

WILLIAM P., Appellant, v. TAUNYA P., Appellee.

WILLIAM P., Appellant, v. TAUNYA P., Appellee. No. S-13993. Supreme Court of Alaska. Aug. 26, 2011. Herbert M. Pearce, Anchorage, for Appellant. Margaret O'Toole Rogers, Foster & Rogers, LLC, Fairbanks, for Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

4101

25846

OPINION FABE, Justice. I. INTRODUCTION The superior court awarded sole legal custody of two children to their mother, Taunya, upon her motion to modify custody. Their father, William (Bill), appeals, arguing that the superior court improperly weighed the best interests of the children. Because we conclude that there was sufficient evidence to support the superior court's conclusions and that the superior court did not abuse its discretion, we affirm the superior court's decision. II. FACTS AND PROCEEDINGS Bill and Taunya P. were married on February 14, 1998. They had two sons, born in 1998 and 2000. Bill and Taunya were divorced on December 29, 2008. Under the terms of a settlement agreement, they shared legal and physical custody. At that time, both parties resided in Fairbanks. Bill worked for a military contractor and Taunya worked as a teacher's aide. Taunya had discussed moving to North Dakota, where she grew up. In Bill's and Taunya's divorce decree the superior court ordered that if Taunya were to move to North Dakota, their sons would spend the school year with her and summer and winter vacations with Bill. Taunya moved to Mandan, North Dakota, a suburb of Bismarck, in August 2009. Bill relocated to Anchorage. On September 18, 2009, Taunya requested sole legal custody. Taunya alleged that Bill had attempted to intimidate her into remaining in Alaska. She also alleged that, while she was still in Alaska, Bill had sometimes not allowed her to have contact with the children and refused to seek routine medical care for one son's asthma. Taunya claimed that communication with Bill had deteriorated and that Bill had undermined the children's relationship with her. Taunya requested that Bill be allowed only monitored telephonic visitation. Bill responded and requested that the court award sole legal custody of the children to him. Bill argued that Taunya's erratic behavior was to blame for many of the parties' problems. Bill claimed that Taunya had limited his telephone contact with the children. Bill claimed that on three occasions Taunya disconnected the telephone cord from the wall when his conversation with the children went past 9:00 p.m., the children's designated bedtime. Bill alleged that Taunya refused to cooperate in setting up a web camera system so that he could communicate with his children. Bill disputed that he was at fault for their communication difficulties, pointing to sixty emails he sent to Taunya to bolster his argument that he was supporting communication between them. On October 9, 2009, Taunya replied to Bill's opposition and cross-motion to modify custody. She characterized Bill's opposition as "filled with irrelevant and inconsequential accusations against Taunya." She again asserted that it was impossible for her to communicate with Bill, and that Bill, by disputing her reasons for moving to North Dakota, was "inappropriately involved in her choices." In responding to Bill's cross-motion, Taunya argued that it was in the best interests of the children to be with their mother. Bill responded with an affidavit on December 7, 2009, asserting that the best interests of the children justified custody with him. On January 1, 2010, Bill remarried. His current wife has an ongoing custody dispute with her ex-husband over her two children from a previous marriage. On December 11, 2009, the superior court appointed a child custody investigator. The investigator had earlier served as the investigator during the parties' divorcee. The investigator submitted his report on June 29, 2010. The investigator found that "[this is without a doubt the most contentious, unreasonable[,] and manipulative pair of parents with whom" he had ever dealt. The investigator wrote that Bill "frequently employs sarcasm" towards Taunya and "subtly undermines" her through his communications with their sons. But the investigator also wrote that "Taunya is not the innocent victim.... In phone calls and emails, she nitpicks, whines, complains, and appears to have difficulty taking responsibility for her actions." The investigator noted that Taunya admitted slapping her children and admitted that she onee "manbandled her aged mother-in-law." The investigator accordingly wrote that "neither parent is appropriately supportive of the boys maintaining a loving relationship with the other parent." The report also stated both children "expressed strongly and repeatedly that they wished to live with their father for the bulk of the year"; one boy explained that he preferred his father because he did not "like being yelled at and smacked." The investigator concluded by noting that Taunya and Bill "do not appear to be able to have a civil discussion about the boys or to make mutually supportive decisions on behalf of their children." The investigator recommended that the custody arrangement be reversed: the children would spend the school year with Bill and summers with Taunya. The investigator based this recommendation on two rationales. Kirst, he referred to "Taunya's growing harshness as a parent, especially her physical abuse of the boys and her escalation of the physical struggle with her son; these reactions are likely to increase as the boys enter their full adolescence with their own power issues and typical disrespectfulness." The second rationale was the preference of the two boys to be with their father. The investigator also recommended that the parties not communicate directly but instead use a "third party who will pass communications." A hearing was held on July 20, 21, and 22. The superior court held that "[blecause the court concludes that the parties'] history of noncooperation has adversely impacted the boys to the extent that a change in legal custody is necessary, Taunya's motion for sole custody is granted." The superior court also reduced Bill's visitation to one week at Christmas and six weeks during the summer. III. STANDARD OF REVIEW Alaska Statute 25.20.110(a) provides that 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 will reverse a custody modification order "only if the record shows an abuse of discretion or if controlling factual findings are clearly erroneous." An abuse of discretion in child custody awards occurs when "the trial court considers improper factors, fails to consider statutorily mandated factors, or gives too much weight to some factors. Factual findings are clearly erroncous if a review of the record leaves us "with the definite and firm conviction that the superior court has made a mistake. The trial court's factual findings enjoy particular deference when they are based "primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence." IV. DISCUSSION A. Custody Bill does not contest that there was a substantial change of cireumstances warrant, ing modification of child custody in accordance with AS 25.20.110(a). But he argues that the trial court erred in finding that it would be in the boys' best interests for Taun-ya to have sole legal custody. We disagree. The trial court considered all relevant factors, and we cannot conclude that it clearly erred in its factual findings or abused its discretion in deciding to award custody to Taunya. Alaska Statute 25.20.110(g) provides that "liln making a determination of the best in terests of the child, the court shall consider the factors under AS 25.24.150(c)." Alaska Statute 25.24.150(c) lists nine factors: (1) the physical, emotional, mental, religious, and social needs of the child; (2) the capability and desire of each parent to meet these needs; (8) the child's preference if the child is of sufficient age and capacity to form a preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent bas sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child; (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents; (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child; (9) other factors that the court considers pertinent. 1. Physical, emotional, mental, religious, and social needs of the children The superior court found that the parties' sons "have suffered emotional damage because of the conflict between their parents." The superior court found that Bill in particular was to blame for this conflict and therefore Taunya was "the only parent able to meet the children's special emotional needs." Bill argues that Taunya shared responsibility for the tension between them and its impact on the children. But we have reasoned that "joint legal custody is inappropriate if the parents cannot communicate effectively." Because there was evidence that Bill was more to blame for his and Taunya's poor communication, it was not clearly erroneous for the superior court to use the first factor to support awarding sole legal custody to Taunya. 2. The capability and desire of each parent to meet the children's needs The superior court distinguished between the children's emotional needs and their physical, educational, and social needs. a. Emotional needs The superior court found that "Taunya is the only parent able to meet the children's special emotional needs." The court explained that Bill's involvement with his current wife's custody battle would expose the children to more of the same domestic conflict they had already experienced. The superior court emphasized Taunya's track record as a primary caregiver, and found that Bill's "unwillingness to support the boys emotionally throughout the last year and instead to advance his own victimization narrative shows a complete lack of understanding of the boys['] needs." Diana Jacobsen, the boys' North Dakota therapist, testified that the boys had absorbed negative ideas about their mother that they had heard from their father. Bill acknowledged that his frustration with Taunya's move to North Dakota probably "spilled over to the kids." Bill recorded several conversations between himself and the children and submitted those recordings to the superior court. In these recordings Bill blames and criticizes Taunya for moving the children to North Dakota. Because there was evidence that Bill was harming the children's emotional needs by undermining Taunya, it was not clearly erroneous to conclude that this factor favored Taunya. b. Other needs The superior court separately found that Taunya was also "better able to meet the children's physical, educational, and social needs." The superior court emphasized Taunya's "track record" as the parent "who primarily cared for the boys during the marriage" and after they moved to North Dakota. As to the children's physical needs, one witness testified that Bill obtained two dogs against the advice of the children's physicians. And Taunya generally criticized Bill's failure to take their son's medical needs seriously. Regarding the boys' social needs, Diana Jacobsen testified at the hearing that Bill's negative comments about Taunya could result in unhealthy attitudes toward women later in life. Bill argues that based on his parenting performance during the parties' shared custody in Alaska, there is no basis to conclude that Taunya would be a superior caregiver. Bill notes that the custody investigator found that the children could be expected to function in either parent's custody and repeatedly emphasizes that the custody investigator recommended that primary custody be with him. We have explained that "custody investigators are simply expert witnesses and that their recommendations should be evaluated on a case-by-case basis, in the same manner as testimony presented by other witnesses. 5 In Eberts v. Eberts, we found that the superior court did not abuse its discretion by rejecting a custody investigator's analysis and recommendations. We stated that the "critical question . is not whether the superior court erred in rejecting the custody investigator's proposed decision, but whether the evidence as a whole supports the court's decision. Here, the child custody investigator acknowledged that the children could function in either parent's custody, and it was not clearly erroneous for the superior court to select the parent not recommended by the investigator. 3. The children's preference The superior court discounted the children's preference to live with Bill. According to the custody investigator, both children "expressed strongly and repeatedly that they wished to live with their father for the bulk of the year." And Bill testified that the children voluntarily call him nearly every day. But the superior court found that, at ages eleven and ten, the children did not have "sufficient age or capacity to express a preference." Alaska Statute 25.24.150(c)B) provides that a child's preference is to be considered "if the child is of sufficient age and capacity to form a preference." We conclude that the superior court's finding that the boys lacked the age and capacity to form a preference was not clearly erroneous. But, of course, as the boys get older, the trial court will be more inclined to respect their preference. 4. The love and affection existing between the children and each parent The superior court found that love and affection existed between the children and both parents. 5. The length of time the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity _ The superior court found that the fifth factor of stability and continuity favored Taunya. The court found that "the boys have done well in Taunya's primary care." It found that the only area "where the boys are reported to have difficulty is in their relationship with their mother and this difficulty can be specifically attributed to Bill's negative leadership." The child custody investigator found that the children were doing well in school, though they were having some difficulty making friends in North Dakota. At the hearing, Taunya noted that she has many family connections in North Dakota. Taunya also characterizes Bill's home as "newly formed and riddled with conflict" and notes that Bill also moved away from Fairbanks, where the boys had been raised since birth. Bill disputes the existence of Taunya's positive "track record." Bill notes that, at the time of the custody hearing, Taunya had had school-year custody for only one year, whereas Bill and Taunya had previously shared custody in Alaska for two years. Bill also argues that the North Dakota arrangement was so recent that it could not be relied on for purposes of establishing continuity. Bill notes that the children spent their whole lives prior to the move in Alaska and that Taunya had family in Anchorage. We have explained that the stability and continuity factor is not limited to geographic continuity and stability, but instead encompasses the "totality of the cireumstances [the children] were likely to encounter in their respective parents' homes. Civen this broad inquiry, we conclude there was sufficient evidence to support the superior court's finding on this factor. 6. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the children The superior court found that the sixth factor of willingness to foster a close relationship with the other parent strongly favored Taunya. The court found that while Taunya had promoted the children's relationship with Bill, Bill had only undermined their relationship with Taunya. The custody investigator found that neither party was sufficiently supportive of a relationship with the other parent, but found fault with "Bill far more than Taunya." The investigator found that "at times [Bill] . has not been supportive of Taunya while on phone calls with the boys." But the investigator also found that Taunya had not adequately facilitated communication with Bill and "had not followed through on [eInsuring regular video [instant messaging] between the boys and their father" and that she "had imposed the arbitrary time of 9 pm" to end conversations. Bill argues that he allowed the children free access to a computer and phone to contact their mother whenever they chose, whereas Taunya limited the children's access to these things. In their interviews with the custody investigator, the boys confirmed Bill's characterization. Taunya counters that the boys could talk to their father every day at 8:30 p.m. but that she would insist on a 9:00 bedtime. She admits unplugging the phone cord to end these calls on several occasions, arguing that she did so only after Bill disregarded her previous requests to end the calls promptly at 9:00. Bill points to various efforts he undertook to support the children's relationship with Taunya. Bill argues that he attended counseling on how to handle blended families. Bill also points to emails he sent to Taunya in which he attempted to establish a spirit of cooperation. Taunya counters by arguing that the negative comments Bill made about her to the boys were an attempt to undermine their relationship with her. Taunya also notes various ways she has attempted to support the boys' relationship with Bill, such as mailing him school work or encouraging the children to make him presents. We have reasoned that when parents reside at a great distance from each other, it is appropriate to give greater weight to this factor. In Silvan v. Alcina, we explained that "lilt is essential to have a custodial parent willing to foster an open relationship with the other parent when a great distance separates the children from the non-custodial parent. In this case, there is evidence that both Bill and Taunya at times supported and at other times sabotaged the boys' relationship with the other parent. Both allowed communication between the children and the other parent but both also undermined the authority of the other parent in various ways. The child custody investigator and Diana Ja-cobsen both testified that Bill was more culpable in his attempt to undermine Taunya than Taunya was to undermine him, and it was not clearly erroneous for the superior court to have held that the sixth factor favored Taunya. 7. Any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents The superior court did not find there to be child abuse, child neglect, or domestic violence. Taunya admits there was a "single instance of Taunya slapping her disrespectful son." The superior court characterized Taunya's slapping as "not grossly inappropriate" because Bill and Taunya had "used corporal punishment before." Shortly after Taunya and the children arrived in North Dakota, Bill called North Dakota child protective services reporting verbal and physical abuse. This contact resulted in several ree-ommendations for Taunya but no continued involvement with protective services. Taun-ya argues that her slapping did not constitute abuse and that in any event she has responded to the slapping incident remorsefully and positively. And Diana Jacobsen agreed that Taunya did not present the characteristics of a classic abuser and that she demonstrated appropriate remorse for the slapping incident. The superior court did not commit clear error in finding there to be no physical abuse. 8. Evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the children The superior court did not find any evidence of substance abuse. The investigator also found no evidence of substance abuse. B. Visitation The superior court shortened Bill's visitation to one week at Christmas and six weeks during the summer. The superior court reasoned that "it is necessary to reduce the contact the boys have with their father in order to dilute the adverse impact he is having on them." Bill argues that "the Superior Court's . reduction in his visitation rights was not supported by the record and should be reversed." We view this as a very close question. Bill argues that all "the experts in this case recommended there should be no reduction in" Bill's visitation. Taunya counters that this statement is incorrect and that Diana Jacobsen recommended reduced visitation. But at the hearing, when the court asked Diana Jacobsen what the effect would be of restricting Bill's visitation, Jacobsen responded that she would not recommend reduced visitation at that time because the boys "need their father just as much as they need their mother." We have explained that "the cooperation necessary to allow more liberal visitation is far less than that needed for joint custody. We have also held that noneustodial parents "have certain residual rights and responsibilities including the right and responsibility of reasonable visitation. The treatise Modern Child Custody Practice explains that visitation is a "natural right of the noncustodial parent that may not be taken away absent extraordinary cireumstances. And in Lone Wolf v. Lone Wolf, we found that the superior court had abused its discretion in denying the father's request to have visitation with his children while their mother worked week-long stints at her job as a correctional officer without making findings to support the restrictive award. Here, while we conclude that the superior court did not abuse its discretion in light of its findings about the harm to the boys' relationship with their mother caused by Bill's denigration of Taunya in front of them, we assume that the superior court will have the opportunity to revisit this question if Bill ceases his ongoing "campaign" to undermine Taunya. And, as we have recognized, as the boys get older and more mature, their reasoned preference regarding custody will be entitled to "substantial reliance" and is "not so lightly to be disregarded. v. CONCLUSION We AFFIRM the decision of the superior court. CHRISTEN, Justice, not participating. . Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (internal quotation marks omitted). . Id. . D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207-08 (Alaska 2000). . Misyura v. Misyura, 242 P.3d 1037, 1039 (Alaska 2010) (quoting Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)). . Cusack v. Cusack, 202 P.3d 1156, 1160 (Alaska 2009). . Ebert, 113 P.3d at 647. . Id. . Id. at 647-48; see also Chase v. Chase, 109 P.3d 942, 945 (Alaska 2005) ("We have previously held that the trial court is not obligated to adopt a custody investigator's recommendations."); Evans v. Evans, 869 P.2d 478, 480 (Alaska 1994) (upholding trial court's decision to grant custody to father even though custody investigator recommended granting custody to mother); Nichols v. Mandelin, 790 P.2d 1367, 1373 (Alaska 1990) (affirming trial court's decision to grant custody to mother even though trial court's decision contradicted custody investigator's recommendation that parents share custody). . See Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) (affirming custody decision which placed "substantial reliance" on 14-year-old child's preference). . Evans, 869 P.2d at 482; see also Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996) ("Continuity and stability for a child come not only from staying in the same house, or going to the same school. Consideration should also be given to social and emotional factors such as who the primary care-giver was for the child and whether the child would be separated from siblings or family members if he was placed with one parent rather than another."). . Blanton v. Yourkowski, 180 P.3d 948, 951 (Alaska 2008); Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005). . Silvan, 105 P.3d at 121. . We do not discuss the ninth factor because the superior court did not rely on it. See McDanold v. McDanold, 718 P.2d 467, 469 (Alaska 1986) (explaining that the superior court need only consider all relevant statutory best interests factors). . Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1191 (Alaska 1987). . J.F.E. v. J.A.S, 930 P.2d 409, 413 (Alaska 1996) (quoting AS 47.10.084(c)) (internal quotation marks omitted). . 1 Jerr Atkinson, Mopern Cam» Custopy Practice § 5.2 (2d ed. 2010) (internal quotation marks omitted); see also id. at § 5.13 ("'The standard for placing restrictions on visitation is similar to the standard for denial of visitation."). . Lone Wolf, 741 P.2d at 1190. . Valentino v. Cote, 3 P.3d 337, 341 (Alaska 2000); see also Yvonne S. v. Wesley H., 245 P.3d 430, 433, 435 (Alaska 2011) (using mature child's preference as a "major factor" in making custody determination).

6986508

George M. ROMERO, Appellant, v. STATE of Alaska, Appellee

Romero v. State

2011-05-27

No. A-10418

132

140

258 P.3d 132

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

George M. ROMERO, Appellant, v. STATE of Alaska, Appellee.

George M. ROMERO, Appellant, v. STATE of Alaska, Appellee. No. A-10418. Court of Appeals of Alaska. May 27, 2011. Julia D. Moudy, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jonas M. Walker, Assistant District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

4534

27854

OPINION BOLGER, Judge. George M. Romero was convicted of contempt of court for disobeying an order issued by the superior court. He had been appointed as the third-party custodian for a felon who was awaiting a probation revocation proceeding. On appeal, Romero argues that the evidence was insufficient to support his conviction. We agree that the State failed to prove that the superior court issued an order that was sufficiently clear and definite to support a conviction for eriminal contempt. Background In November 2006, Superior Court Judge Larry D. Card approved Romero as a third-party custodian for Veronica Ashouwak. Ashouwak was a convicted felon who was awaiting disposition of a petition to revoke her probation. Her conduct while on probation had been poor and she was facing a fourth petition to revoke her probation. According to Judge Card, Ashouwak had "major problems with [controlled] substances." At the bail hearing, the State objected to Ashouwak's release to Romero in part because Ashouwak's performance while under probation supervision was "best described as abysmal" and she needed the "highest level of in-patient substance abuse treatment to avoid her self-destructive and illegal behavior." Despite the State's objection, Judge Card approved Romero as Ashouwak's third-party custodian. The written conditions of Ashouwak's release required her not to "be where aleohol is sold or consumed" and to have "no guns in [the] home." But even though Judge Card ordered Ashouwak to avoid alcohol, he did not explicitly direct Romero to remove all alcohol from his residence. A day or two after the bail hearing, Ashou-wak's probation officer searched Romero's residence while Ashouwak was there and found alcohol. Based on this evidence, the State charged Romero with violating the duties of a third-party custodian on the ground that he had not reported that Ashou-wak had violated her conditions of release. The State later amended the information and added a second count charging Romero with criminal contempt for knowingly disobeying a lawful court order. The State subsequently dismissed the first count-the charge that Romero had violated his duty to report-and proceeded to trial on the contempt of court charge. During a hearing prior to trial, the prosecutor told the trial judge, District Court Judge Stephanie Rhoades that the contempt charge was based on Judge Card's oral order that Romero must remove all alcohol from his residence. The prosecutor repeated this assertion in his opening statement at trial before Judge Rhoades. The State maintains this position in this appeal. Discussion Romero contends that Judge Card never ordered him to remove all alcohol from his residence. The State argues that even though "Judge Card's order was not as clear as it could have been," Romero had to have known that he had been ordered to remove any aleohol from his residence before allowing Ashouwak to stay there. To resolve this issue, we view the evidence in the light most favorable to upholding the jury's verdict, asking whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt. At Romero's trial, the State presented the audio recording of Ashouwak's bail hearing. At that hearing, the prosecutor, Ashouwak's defense attorney, and Judge Card were concerned about Ashouwak's apparent inability to control her aleohol and cocaine abuse. Ashouwak's defense attorney emphasized that Romero had experience as a third-party custodian for persons with chemical abuse issues, especially those with alcohol-related problems. The defense attorney urged Judge Card to have faith that Romero would follow all duties imposed by the court. The attorney also told the court that Romero was helping to search for an in-patient treatment facility for Ashouwak. And the attorney agreed that Romero would remove his firearms from his house. The defense attorney then asked Romero if he would "also . take out any drop of aleohol out of your house[.]" To this, Romero replied, "Yes." Judge Card then commented, "I don't think Mr. Romero drinks either." Romero responded, "Very seldom," and Judge Card replied, "Okay." After this exchange, Judge Card outlined Ashouwak's conditions of release: "No alcohol, no drugs, no violation of the law, follow conditions, including reporting to probation officer within 24 hours of release." Judge Card then entered written conditions of release ordering Ashouwak to "not . consume alcohol or be where aleohol is sold or consumed." Viewing this evidence in the light most favorable to the guilty verdict, we conclude that the State did not prove that Judge Card had ordered Romero to remove all aleohol from his residence. To prove contempt for violating a court order, the State had to prove that Romero was aware of the requirements of a court order. That is, as part of proving that Romero had disobeyed a court order, the State had to prove that the court had entered an order specifically telling Romero what he was required to do. This principle was recently discussed by the Texas Court of Criminal Appeals in In re Davis The Davis court explained that a person charged with contempt of court is entitled to procedural due process, including "full and complete notification. Accordingly, "the order underlying a contempt judgment must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations [have been] imposed upon [him or her]." The "question of whether an order is enforceable by contempt depends on whether the order is definite and certain, and the focus is on the wording of the [order] itself. We agree with this discussion. In this case, the State was required to prove that Judge Card issued an order requiring Romero to remove all aleohol from his residence. But Judge Card did not issue any definite order that Romero was required to do so. So Romero did not have notice that Judge Card had imposed this obligation. In the absence of a specific court order, Romero was not guilty of eriminal contempt. Conclusion Romero's conviction is REVERSED. The district court shall enter a judgment of acquittal. MANNHEIMER, Judge, concurring. . AS 09.50.010(5); AS 12.80.010. . AS 09.50.010 provides: "The following acts or omissions with respect to a court of justice or court proceedings are contempts of the authority of the court: . (5) disobedience of a lawful judgment, order, or process of the court." AS 12.80.010 provides that this statute applies in criminal proceedings. . Shorty v. State, 214 P.3d 374, 383-84 (Alaska App.2009). . See Cont'l Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); O'Brannon v. State, 812 P.2d 222, 228 (Alaska App.1991); see also L.A.M. v. State, 547 P.2d 827, 831 (Alaska 1976); Hutchison v. State, 27 P.3d 774, 780 (Alaska App.2001). . See Affatato v. Considine, 305 Ga.App. 755, 700 S.E.2d 717, 723 (2010) (before a defendant can be found in contempt for violating a court order, the order should inform him in definite terms of the duties imposed upon him; therefore, the command must be express rather than implied) (citations omitted). . 305 S.W.3d 326 (Tex.App.2010). . Id. at 330. . Id. at 330-31. . Id. at 331; see also United States v. Straub, 508 F.3d 1003, 1012 (11th Cir.2007) (for purposes of contempt, '"[aln order meets the 'reasonable specificity' requirement only if it is a 'clear, definite, and unambiguous' order requiring the action in question"") (citations omitted).

11683416

Michael J. WALLERI, Appellant, v. CITY OF FAIRBANKS, James Hayes, Robert Wolting, Billie Ray Allen, Jim Immel, Jerry Cleworth, and David Stephenson, Appellees

Walleri v. City of Fairbanks

1998-10-02

No. S-8186

463

468

964 P.2d 463

964

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

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

Michael J. WALLERI, Appellant, v. CITY OF FAIRBANKS, James Hayes, Robert Wolting, Billie Ray Allen, Jim Immel, Jerry Cleworth, and David Stephenson, Appellees.

Michael J. WALLERI, Appellant, v. CITY OF FAIRBANKS, James Hayes, Robert Wolting, Billie Ray Allen, Jim Immel, Jerry Cleworth, and David Stephenson, Appellees. No. S-8186. Supreme Court of Alaska. Oct. 2, 1998. Michael J. Walleri, pro se, Fairbanks. Paul J. Ewers, Deputy City Attorney, Office of the City Attorney, Fairbanks, for Ap-pellees. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

2940

18150

OPINION COMPTON, Justice. I. INTRODUCTION Michael Walleri appeals the dismissal of his action against the City of Fairbanks to void or reform a contract between it and a third party for the sale of certain municipal utilities. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS A. Facts In the summer of 1996, the City of Fairbanks concluded negotiations to sell its telephone, electric, sewer, and water utilities (collectively the Fairbanks Municipal Utilities System or FMUS) to a group of private business interests (Buyer Group). The contract for sale was signed that August. The contract contained a provision making it subject to approval by the voters of the City of Fairbanks. That same month, the Fairbanks City Council passed an ordinance approving the sale and referring the matter for inclusion on the October 8, 1996, city general election, as required by the city charter. At that election, the voters approved the sale as presented on the ballot. B. Proceedings Walleri, a taxpayer and utilities ratepayer, sued the City of Fairbanks and certain city officials (referred to collectively as the City), claiming that the terms of the actual contract were at odds with the terms on the ballot measure. The City answered and moved to dismiss on various grounds. Walleri later amended his complaint to allege the following counts: (1) violation of Fairbanks City Charter section 8.4 (contract unauthorized by vote); (2) breach of the duty to exercise reasonable care in negotiations; (3) constructive fraud; and (4) violation of Fairbanks City Charter section 2.8 (concerning open meetings). As a remedy, Walleri asked the court to (1) void the contract or (2) reform the contract to conform to the measure actually passed. Following oral argument, the superior court ruled from the bench, dismissing all four counts of the complaint on two alternative grounds: (1) each count was an election contest under Fairbanks City Code of Ordinances section 3.127, which sets forth the sole method for contesting a city election, and Walleri failed to comply with the procedural requirements of that section; (2) each count involves non-justiciable political questions. Additionally, with respect to count IV, the court held that Fairbanks City Charter section 2.8, concerning open meetings, was preempted by the State Open Meetings Act. See AS 44.62.310-.312. The court noted that Walleri had failed to allege a violation of the State Open Meetings Act in his amended complaint. The City then moved for attorney's fees. Walleri opposed, arguing that he was a public-interest litigant against whom attorney's fees could not be awarded. The court found that Walleri did not satisfy the requirements for public-interest-litigant status and awarded attorney's fees to the City in the amount of $14,168.50. Walleri appeals the dismissal of his case and the attorney's fees award. III. DISCUSSION Walleri presents four distinct issues: (1) none of his causes of action were election contests; (2) all of his causes of action are justiciable; (3) the State Open Meetings Act did not preempt the Fairbanks City Charter provision concerning open meetings; and (4) an award of attorney's fees against him was inappropriate because he was a public-interest litigant. A. Are Any or All of Walien's Causes of Action Properly Deemed "Election Contests"? Walleri acknowledges that he did not comply with the procedural requirements for an election contest (set forth supra note 2). If any of his causes of action are properly deemed election contests, they were properly dismissed. This presents the question: What is an "election contest"? 1. What is an election contest? Fairbanks City Code of Ordinances section 3.127 provides for the contest of city elections. In Boucher v. Bomhoff, 495 P.2d 77, 80 (Alaska 1972), we stated that the overriding concern in an election contest is "to ascertain whether the alleged impropriety in fact establishes doubt as to the validity of the election result." The reason for the rigid procedural requirements for election contests is that "public policy demands that election results have stability and finality." Dale v. Greater Anchorage Area Borough, 439 P.2d 790, 792 (Alaska 1968) (citing Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287, 289 (Ark. 1964)). Whether a cause of action should be deemed an election contest thus turns on the remedy sought. If granting the remedy would defeat the public interest in the stability and finality of election results, it is appropriate to deem the cause of action an election contest and to require compliance with the procedures for such contests. Conversely, if the remedy will not affect the stability and finality of the election result, then the cause of action should not be deemed an election contest. 2. Do any of the counts of Walleri's complaint constitute an election contest? We conclude that none of the counts of Walleri's complaint constitutes an election contest. The only remedy sought by Walleri is the invalidation or reformation of the contract. Nowhere does Walleri challenge the validity of the election result. His complaint does not implicate the public policy favoring the stability and finality of such results. In its opinion from the bench, the superior court suggests that any claim "regarding" an election is subject to the rules for an election contest. We agree with Walleri's argument that such a rule would be poor policy. As explained above, it is in line with the policy behind the stringent procedural requirements for election contests to classify as election contests only those causes of action in which a remedy sought would affect the stability and finality of the election. To classify as an election contest any claim "regarding" an election would not make the results of elections themselves any more stable. The City argues that to void the contract is equivalent to voiding the election. We disagree. The election has significance independent of the contract. If it is proven that the contract does not match the terms voted on by the citizens of Fairbanks, no legal impediment appears to preclude the City from renegotiating a contract according to the terms actually voted upon. The City next suggests that Roberts v. Brownsboro Independent School District, 575 S.W.2d 371 (Tex.App.1979), supports its argument and is "virtually identical" to the instant case. In Roberts, plaintiff sought, by declaratory judgment, to invalidate the city council order calling a school bond election after that election had occurred. See id. at 371-72. While the Roberts court focused on the idea that an attack on any part of the election process must be deemed an "election contest," we note that granting the remedy sought in Roberts would have had the direct effect of invalidating the election. See id. at 373-74. In the instant case, however, once it is recognized that the election has significance independent of the contract, it is clear that voiding the contract does not invalidate the election. Roberts is, thus, distinguishable. The City presents a number of other out-of-state cases. However, each of these eases is also distinguishable in that the remedy requested required the invalidation of the election result. Finally, the City argues that because the contract came first, only the election may be challenged. It is uncontested that the contract was negotiated and signed prior to the election. That being the ease, the City argues that if the ballot language did not conform to the contract, it must be the ballot language that is defective. The City suggests that a challenge to the ballot language is clearly an election contest. This argument depends on a principle already rejected above — that the election has no significance independent of the contract. Once it is accepted that the contract and the election result (authorizing entry into a contract with particular terms) are distinct, it is irrelevant which came first. B. Are Any or All of Walleri's Causes of Action Nom-Justiciable Political Questions? The superior court held, in the alternative, that each of Walleri's counts involved a non-justiciable political question. The superior court reasoned thus: The issue of selling the city utilities is a policy value judgment issue to be decided by the City Council and the voters.... The basic issue [in each count of Walleri's complaint is] whether the ordinance or the sale is right or wrong or good or bad . and these political questions are best left to legislative bodies, not the courts.... This court finds that the grounds for a political question are met. There is a textually demonstrable commitment of the issue to another political department. Here it is to the City Council . and the court finds that the decision of what to do with city property is a decision for the city and its voters. "To aid in the identification of nonjus-ticiable political questions we have employed the approach adopted by the United States Supreme Court in Baker v. Carr [369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)]." State, Dep't of Natural Resources v. Tongass Conserv'n Soc'y, 931 P.2d 1016, 1018 (Alaska 1997) (citing Abood v. League of Women Voters of Alaska, 743 P.2d 333, 336 (Alaska 1987); Malone v. MeeUins, 650 P.2d 351, 357 (Alaska 1982)). Under our interpretation of Baker, one of the criteria for finding a political question is, as the superior court suggests, "a textually demonstrable commitment of the issue to a coordinate political department." 650 P.2d at 357 (citing Baker, 369 U.S. at 217, 82 S.Ct. 691). And, as the superior court suggests, Fairbanks City Charter section 8.4 demonstrably commits the issue of the "rightness or wrongness" of selling the City's utilities to the city council and to the voters. However, the superior court misapplied the criteria for finding a political question to the facts of the instant case. Count I does not ask the court to determine the "rightness or wrongness" of the decision to sell FMUS. Rather it suggests that the contract is invalid for failure to comply with Fairbanks City Charter section 8.4, which requires voter ratification of an ordinance authorizing the sale of a public utility. Count IV also does not challenge the correctness of the decision to sell FMUS. It too alleges a procedural violation — failure to comply with Fairbanks City Charter section 2.8, which sets forth local open meetings requirements. Counts II and III allege individual acts of breach of duty of care and constructive fraud by City officials. These counts do not appear to ask the court to determine whether the contract was a good idea. We do not find that any of the counts of Walleri's complaint involves a political question. C. Did Wallen State a Cause of Action under the Fairbanks City Charter's Open Meetings Provision? Section 2.8 of the Fairbanks City Charter provides that all city council meetings must be open to the public, except that the council may discuss in a closed or executive session "any question which would tend to defame or prejudice the reputation and character of any person." In count IV of his complaint, Walleri alleges that the city council met in closed executive sessions at least seven times to discuss the sale of FMUS, in violation of the charter provision referenced above. The superior court held that Walleri could not state a cause of action under section 2.8 because that provision is preempted by AS 29.10.200, 29.20.020, and 44.62.310. The superior court is correct. Alaska Statute 29.10.200 lists provisions that "apply to home rule municipalities as prohibitions on acting otherwise than as provided. These provisions supersede existing and prohibit future home rule enactments that provide otherwise." (Emphases added.) No one contends that Fairbanks is not a home rule municipality. Alaska Statute 29.20.020 is one of the provisions mentioned in AS 29.10.200. Alaska Statute 29.20.020 provides in part that the "[mjeetings of all municipal bodies shall be public as provided in AS 44.62.310." Alaska Statute 44.62.310(a) provides in part that "[a]ll meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by this section or another provision of law." Alaska Statute 44.62.310(c) lists the subjects that may be considered in executive session. This list is broader than the exception provided in section 2.8 of the Fairbanks City Charter— the Fairbanks City Charter provides "otherwise." It is thus preempted, by the terms of AS 29.10.200. Walleri's argument entirely ignores the effect of the explicit language of AS 29.10.200, and so is not well taken. D. Was the Attorney's Fees Award against Walleri Appropriate? Because we reverse the dismissal of counts I, II, and III the City is not, at this time, the prevailing party. We therefore vacate the award of attorney's fees. IV. CONCLUSION We AFFIRM the dismissal of count IV; REVERSE the dismissal of counts I, II, and III; VACATE the award of attorney's fees; and REMAND the case for further proceedings consistent with this opinion. . Fairbanks City Charter section 8.4 provides, in its entirety: "An entire public utility owned by the city shall not be sold or leased except by authority of an ordinance ratified by a majority of the qualified voters voting on the question." . Section 3.127 provides as follows: Contest of election. A defeated candidate or any ten (10) qualified voters who contested an election may bring an action in the superior court within ten ' (10) days after the council has concluded that said election was validly held and the results entered upon the minutes. Such legal action shall be upon the grounds set forth in AS 15.20.540 for contesting state elections. The judge shall render a decision as required by AS 15.20.560 for state elections. If no such action is commenced within the ten (10) day period, the election and .the election results shall be conclusive, final and valid in all respects. . In Taylor v. Roche, 271 S.C. 505, 248 S.E.2d 580, 581 (S.C.1978), plaintiffs sought to invalidate a constitutional amendment because the form of the question on the ballot used to obtain approval for that amendment was misleading. This is conceptually different from the instant case. The crucial "election result" in Taylor was the passage of the constitutional amendment. The crucial "election result" in the instant case is the authorization of the sale of the utilities, under particular terms. See Fairbanks City Charter section 8.4. The contract itself, which Walleri seeks to invalidate, is not the election result. In Dehoff v. Attorney General, State of Tennessee, 564 S.W.2d 361, 362 (Tenn.1978), the plaintiff sought a declaratory judgment that a refer endum election was void because the ballot question had not adequately explained the effects of the act to be approved. The court broadly interpreted the term "election contest" to include any action that "seeks a judicial determination that an election is invalid, whatever the cause of invalidity." Id. at 363-64. The City argues that, as the Tennessee court looked past the declaratory-judgment form of Dehoff's action to its ultimate effect of invalidating the election, we should look past the contract-voiding form of Walleri's action to its alleged ultimate effect of invalidating the election. But, as we explained above, Walleri's action will not in fact have that ultimate effect. State ex rel. Byrd v. Board of Elections of Summit County, 65 Ohio St.2d 40, 417 N.E.2d 1375 (Ohio 1981), is similar to Dehoff. Plaintiff sought to invalidate an election by means of a writ of mandamus and by an action in quo war-ranto. See id. at 1377. The court concluded that these actions were unavailable — the plaintiff was required to follow the statutory procedures for an election contest. See id. at 1377-79. The key difference, again, is that the plaintiff in Byrd sought to invalidate the results of an election, while Walleri does not. In Dinwiddie v. Board of County Commissioners of Lea County, 103 N.M. 442, 708 P.2d 1043, 1045 (N.M.1985), plaintiffs challenged both the validity of the election and its result. Dinwiddie stands for the unremarkable proposition that, because a challenge to either the validity of the election or a challenge to the result "seek[s] to alter the certified result of the election," such a challenge is an election contest. Id. at 1045-46. This is unhelpful to the City — Walleri's complaint does not seek to alter the certified result of the election. . The City suggests a general rule that "[t]he nonjusticiability of a political question cannot be overcome by questioning the legality' of the means employed to implement the policy." The cases that the City cites do not, however, stand for this broad proposition. These cases simply hold that questions regarding "legislative rules" are nonjusticiable, absent exceptional circumstances, as the constitution specifically commits to the legislature the authority to provide for its own rules of procedure. See Abood v. League of Women Voters of Alaska, 743 P.2d 333, 339-40 (Alaska 1987); Abood v. Gorsuch, 703 P.2d 1158, 1163-64 (Alaska 1985); and Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982). . Walleri concedes that the Council could hold the meetings at issue in executive session under AS 44.62.310. . We recognized the preemptive effect of the statutory predecessor to AS 29.10.200 in Jefferson v. State, 527 P.2d 37, 43 n. 33 (Alaska 1974): "If the legislature wishes to 'preempt' an entire field, they must so state. We note that the legislature has done this in its new Title 29, Municipal Code." [Referring to the predecessor to AS 29.10.200.] (Citation omitted.)

11683281

David MESIAR, in his official capacity, and State of Alaska, Department of Fish and Game, Petitioners, v. Art HECKMAN, Sr., Fred Lamont, Sr., and Martin Kelley, on behalf of themselves and all others similarly situated, Respondents

Mesiar v. Heckman

1998-09-11

No. S-7892

445

452

964 P.2d 445

964

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

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

David MESIAR, in his official capacity, and State of Alaska, Department of Fish and Game, Petitioners, v. Art HECKMAN, Sr., Fred Lamont, Sr., and Martin Kelley, on behalf of themselves and all others similarly situated, Respondents.

David MESIAR, in his official capacity, and State of Alaska, Department of Fish and Game, Petitioners, v. Art HECKMAN, Sr., Fred Lamont, Sr., and Martin Kelley, on behalf of themselves and all others similarly situated, Respondents. No. S-7892. Supreme Court of Alaska. Sept. 11, 1998. Gary M. Guarino and Venable Vermont, Jr., Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioners. Russell L. Winner and Lisa H. Donnelley, Winner & Associates, P.C., Anchorage, and Myron Angstman, Angstman Law Office, Be-thel, for Respondents. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

3863

24129

OPINION BRYNER, Justice. I. INTRODUCTION Art Heckman, Fred Lamont, and Martin Kelley (collectively Heckman) engage in commercial or subsistence fishing on the Yukon River drainage; on behalf of themselves and similarly situated resource users, they sued David Mesiar and the Alaska Department of Fish and Game (collectively ADF & G) for negligent operation of a sonar fish counter that ADF & G relied on to make fisheries closure decisions for the Yukon River drainage during the 1994 fishing season. The main issues presented are whether ADF & G owes Heckman an actionable duty to use reasonable care in fisheries data collection and management, and, alternatively, whether ADF & G is immune from tort liability for negligent data collection. We conclude that ADF & G owes no actionable duty to Heck-man and do not reach the immunity question. II. FACTS AND PROCEEDINGS The Commissioner of ADF & G has the responsibility to "manage, protect, maintain, improve, and extend the fish, game, and aquatic plant resources of the state in the interest of the economy and general well-being of the state." AS 16.05.020(2). Title 16, Chapter 5 of the Alaska Statutes gives ADF & G broad powers to carry out its statutory responsibilities, including the power to summarily order emergency openings and closures of fishing periods; such orders have the force and effect of law. See AS 16.05.020(3); AS 16.05.060(a)-(c). In 1994 the Board of Fisheries promulgated 5 AAC 01.249 as a guideline for managing the fall chum-salmon run from July 16 through December 31 in the Yukon River drainage. The regulation included provisions governing mandatory closures and setting time limits for different fisheries — commercial, sport, personal use, and subsistence— depending on the projected run size. 5 AAC 01.249. In order to explain and supplement 5 AAC 01.249, ADF & G issued Regional Information Report No. 3A94-23, the "Yukon Area Commercial and Subsistence Salmon Fisheries 1994 Management Plan." In this plan, ADF &'G stated that the sonar project near Pilot Station would be the primary method by which it would assess the fall chum salmon run. ADF & G set guidelines for operating the sonar and, in an internal memorandum entitled "Project Operational Plan for the Lower Yukon River Sonar," described these guidelines, as well as the sonar equipment itself and how it would be used in counting fish on the Yukon. As a result of low salmon counts, ADF & G closed fisheries on the Yukon during parts of the 1994 fall chum season under 5 AAC 01.249. In response, Heckman filed a class action against ADF & G employee David Mesiar and ADF & G, alleging that Mesiar, who operated the sonar counter near Pilot Station, negligently miscounted the run, thereby precipitating unnecessary closures and restrictions on Yukon River drainage chum fisheries. ADF & G moved to dismiss Heckman's complaint for failure to state a claim, arguing primarily that it owed no actionable duty to Heckman and that, even if it did owe a duty, it had immunity from tort suits arising out of fisheries management decisions under AS 09.50.250(1)⅛ discretionary function exception. Superior Court Judge pro tem Mark Wood denied ADF & G's motion, holding that ADF & G owed Heckman a duty to operate sonar counting equipment in a non-negligent manner and that, though fisheries closure decisions themselves are immune discretionary functions, ministerial data collection functions supporting those decisions are not. ADF & G petitioned this court to review Judge Wood's ruling. We granted the petition and now consider whether Heckman's cause of action for negligent fish counting can be sustained against ADF & G's assertions that it had no duty and is immune from liability. We begin by considering the issue of duty. III. ADF & G OWES HECKMAN NO AC- ' TIONABLE DUTY. A. The Relationship between ADF & G and Heckman Is the Same as the Relationship between ADF & G and Any Other Alaska Fisheries Resource User. The initial step in deciding whether an action for negligence can be maintained is to consider whether a duty exists. See Kooly v. State, 958 P.2d 1106, 1108 & n. 3 (Alaska 1998) (citing Stephens v. State, Dep't of Revenue, 746 P.2d 908, 910 (Alaska 1987)). Whether an actionable duty exists is a question of law and public policy. See Estate of Day v. Willis, 897 P.2d 78, 80-81 (Alaska 1995). " 'Duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." City of Kotzebue v. McLean, 702 P.2d 1309, 1313 (Alaska 1985) (quoting William L. Prosser, The Law of Torts § 53, at 325 (4th ed.1971)). In McLean we adopted an ad hoc approach to duty determinations, explaining that we "first define the class of eases to which our rulings will apply, then weigh the factors which support and oppose the imposition of liability in that class of cases." Id. at 1314. In the first phase of duty analysis that McLean describes — defining the class of cases to which our ruling applies — we must bear in mind that duty is at heart a question of policy centering on the basic relationship between the parties rather than on the nature of their conduct on a given occasion. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.1984). Particular conduct becomes important only when a duty is imposed; the conduct then helps to determine the applicable standard of care: "It is better to reserve 'duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet [that] obligation." Id. (emphasis added). As we noted in Kooly, we must take "a generalized approach which asks whether a duty of care should be imposed in the general class of cases" exemplified by the ease before the court. Kooly, 958 P.2d at 1109. This generalized approach is necessary, because " 'fact-intensive inquiries pertain to the issues of breach, causation, and damages, not the threshold legal question of whether a duty exists.' " Id. (quoting Bolieu v. Sisters of Providence in Washington, 953 P.2d 1233, 1241 (Alaska 1998)). The threshold issues, then, are what sort of relationship exists between the parties, and what class of cases does that relationship define. Heckman seems to argue that the parties' relationship is narrow and specific— that Mesiar was essentially counting salmon for the benefit of persons engaging in the Yukon River fall chum-salmon run. But ADF & G more broadly characterizes the relationship at issue here as the basic relationship between a resource manager and a resource user: "Fisheries management and population sampling are inexact processes and for every season and every fishery closure (or opening) there will be disappointed users." ADF & G contends that imposing "an actionable common law duty on a state to collect data for fisheries or public resource management in a non-negligent manner" would be virtually unprecedented. And it claims that recognizing such a broad duty "will encourage annual class-action suits to challenge unpopular ADF & G decisions." In our view, ADF & G accurately characterizes the relationship at issue in this case and the class of cases it defines. Common-law principles and the common-use clause in article VIII, section 3, of the Alaska Constitution "impose upon the state a trust duty to manage the fish, wildlife and water resources of the state for the benefit of all the people." Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 495 (Alaska 1988) (emphasis added). Alaska Statutes 16.05.020(2) reflects this constitutional mandate: "The [ADF & G] commissioner shall . manage . the fish . resources of the state in the interest of the economy and general well-being of the state[.]" AS 16.05.020(2) (emphasis added). Alaska Statutes 16.05.092 also mirrors the constitutional mandate, requiring ADF & G to "develop and continually maintain a comprehensive, coordinated state plan for the orderly present and long-range rehabilitation, enhancement, and development of all aspects of the state's fisheries for the perpetual use, benefit, and enjoyment of all citizens." AS 16.05.092(1) (emphasis added). ADF & G undoubtedly designed its sonar chum-salmon counting project to benefit Heckman and other Yukon River resource users. But Heckman and other Yukon River users were not the exclusive beneficiaries of the program. As part of ADF & G's overall resource-management effort, the sonar project served all resource users and potential users in Alaska. Heckman did stand to gain or lose from ADF & G's efforts more immediately and directly than other Alaskans. But this gave him no special power to demand a higher level of performance from the agency, and it gave him no vested right to recover damages in the event of ADF & G's failure. In short, Heckman's relationship to ADF <& G was that of a resource user to a resource manager. In performing his job as operator of the sonar fish counters, Mesiar collected data for ADF & G, not for Heckman. And in making decisions based on Mesiar's data, ADF & G acted not for the particular and immediate benefit of Heckman and other users of the fall chum-salmon run then in progress, but for the broader benefit of short-term and long-term resource users statewide. If ADF & G owed Heckman an actionable duty of due care in counting fish during the fall chum run, logic would dictate that the agency owed the same duty to all resource users who might claim foreseeable injury as a result of ADF & G's failure to exercise due care in any ministerial aspect of any resource-management program. The relationship between resource manager and resource user, then, is "the class of cases to which our ruling! ] will apply." McLean, 702 P.2d at 1314. We must now turn to the second phase of our duty analysis, which requires us to "weigh the factors which support and oppose the imposition of liability in [this] class." Id. B. The State Owes No Duty to Heckman under the D.S.W. Duty Analysis. 1. The D. S. W. factors In D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), we listed the following public policy considerations as relevant in determining if an actionable duty of care exists: The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting-liability for breach, and the availability, cost and prevalence of insurance for the risk involved. Id. (quoting Peter W. v. San Francisco Unified Sch. Dist, 60 Cal.App.3d 814, 131 Cal.Rptr. 854, 859-60 (1976)). Applying these factors to the present ease, we conclude that no actionable duty should be found to exist. a. Foreseeability of harm, certainty of injury, and connection between conduct and injury In Mattingly v. Sheldon Jackson College, 743 P.2d 356, 361 (Alaska 1987), we held that, for purely economic harm, the identifiable class of plaintiffs must be particularly foreseeable in number, type, and economic expectations. ADF & G argues that the harm to Heckman is not foreseeable or certain because the class of plaintiffs is not particularized. Heckman counters that ADF & G knew that its closure decisions would be based on the sonar numbers and that any inaccuracy could therefore result in harm to Heckman. In Heckman's view, the closures thus caused certain harm and were a direct result of the negligent sonar operation. Both parties are correct. Heckman is correct in asserting that ADF & G's closure decisions predictably and specifically harmed users of the Yukon River drainage fall chum run. But ADF & G is also correct in observing that identifying plaintiffs and specific damages, as contemplated by Mattingly, 743 P.2d at 361, is problematic. ADF & G's resource-management decisions fore-seeably affect many resource users other than those fishing the fall run upstream from the counters; the benefits to one class of users often will harm others, creating a potential conflict between classes of resource users alleging differing harms. In any fisheries-regulation scheme, the interests of some classes of resource users at times become adverse to those of others; a management decision that benefits some inevitably will harm others. For instance, premature closures on the lower river allow more fish to reach upper-river users and may result in a larger escapement, providing future benefits to the ocean-fishing industry. The arguinent that Heckman's damages are foreseeable and certain thus proves too much: almost all fisheries-management decisions have predictable adverse effects on one class of resource users or another; because virtually any management action may be characterized as negligent, recognizing an actionable duty of due care to Heckman would foreseeably expose ADF & G to litigation for almost any future management decision. Hence, the foreseeability of harm to Heck-man is not a dispositive factor. Cf. Stephens, 746 P.2d at 911-12 (imposing no duty of care in filing a lawsuit even though the State could foresee that a negligently brought suit would cause harm). b. Moral blame attached to ADF & G's conduct Virtually all negligence may be viewed as morally blameworthy. Yet in determining the existence of a duty, we have sometimes attached little moral blame to negligent conduct; at other times, we have emphasized this factor. ADF & G accurately observes that the differing treatment our case law accords to the blameworthiness of various negligent acts reflects distinctions in the types of risk they involve. Our cases have ascribed particular significance to the moral blameworthiness of negligence that creates a risk of death or serious personal injury; in contrast, we have ascribed little blameworthiness to ordinary negligence that merely causes economic or purely emotional harm. We certainly do not mean to trivialize the serious and substantial harm that ADF & G's alleged negligence may have caused Heckman and similarly situated resource users; but this harm is nonetheless primarily economic. We conclude that, when ordinary negligence creates a risk of economic harm only, moral blameworthiness is not a prominent factor for purposes of determining the existence of an actionable duty. e. Policy of preventing future harm Heckman argues that future negligence in implementing sonar plans would be deterred by imposing a duty on ADF & G. We find the argument unpersuasive. As we have already pointed out in our discussion of foreseeability, ADF & G's closure orders have different impacts on potentially conflicting groups of resource users. Recognizing an actionable duty to avoid negligent closures based on inaccurate sonar counts could impede ADF & G's ability to manage for all users by encouraging it to base closure decisions on the demands of a single user group. It is far from clear that an actionable duty of care would deter reliance on inaccurate data. To the contrary, the prospect of an action for damages might merely encourage ADF & G to succumb to the demands of the nearest and loudest group of resource users, regardless of the accuracy of ADF & G's data. d. The extent of the burden to the defendant and consequences to the community of imposing a duty We find it likely that burdensome consequences would ensue if we declared actionable a public duty like the one ADF & G owes to all fish and wildlife resource users in Alaska. Allowing a cause of action against a state agency for negligent management decisions would open the door to endless damage claims by unlimited groups of resource users. Almost any management action might support a claim for damages. And in contemplating any proposed action, ADF & G might face competing threats of suit by processors and fishing vessel owners, by upstream and downstream residents, or by groups of resource users representing subsistence, commercial, and sport fishing interests. It makes no difference that Heckman does not allege negligence arising from a management decision,involving policy and discretion, but instead alleges a series of objectively verifiable flaws in implementing and monitoring ADF & G's sonar fish-counting project. ADF & G routinely bases its management decisions on data and information gathered from a wide array of sources. Holding the agency accountable in damages for mistakes in the information underlying its decisions would likely discourage it from acting on any but the clearest information. Yet hesitation prompted by fear of premature action might easily lead to cries of harm, and accompanying suits, from resource users whose interests lay in prompt and vigorous agency initiatives. Caught in the middle by competing threats of litigation in the event of. either action or inaction, the agency ultimately might be driven by fear of litigation to heed the loudest threats, rather than to rely on sound principles of resource management. In sum, once wé recognized an actionable duty of care in gathering data, an alleged breach of the duty might provide an inroad for challenging broader, policy-based decisions. And the very awareness of this possibility might prompt ADF & G to alter its approach to making management decisions. The foreseeable negative consequences to the community would be that the state's resources would not be conserved for the benefit of all Alaskans, as article VIII, section 3 of the Alaska Constitution requires.' Public policy dictates that ADF & G be free from such coercion in collecting data and making management decisions. e. Availability of insurance The record contains no meaningful information concerning the availability or potential cost of insurance to protect the State from damages claims arising from negligent resource-management decisions. But given the unprecedented nature of a cause of action for damages stemming from negligent resource management, and given further that almost any management decision will harm some resource users and generate a risk of suit, we think it unlikely that the State could find or afford insurance. As a practical matter, it seems likely that the State would absorb all costs of litigation, in effect becoming a guarantor of Alaska's ability to ensure fish and wildlife resources to its citizens. This result hardly seems desirable. 2. The D.S.W. factors do not warrant a finding of duty. Heckman cites no cases, and we are aware of none, holding that mere negligence by an agency charged with a general public duty of resource management supports a claim for damages by an affected resource user. But there are significant similarities between the present case and D.S.W., which involved the State's alleged negligence in fulfilling an analogous, broad-based public responsibility: providing public education to children. In D.S.W., we declined to find an actionable right to a non-negligent education: Few of our institutions, if any, have aroused the controversies, or incurred the public dissatisfaction, which have attended the operation of the public schools.... To hold them to an actionable "duty of care," in the discharge of their academic functions, would expose them to the tort claims — real or imagined — of disaffected students and parents in countless numbers. 628 P.2d at 556-56 (quoting Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 131 Cal.Rptr. 854, 861 (1976)). As ADF & G correctly asserts, fisheries management, much like academic management, is an area fraught with controversy of the kind that invites litigation. We would greatly compound the volatility surrounding fisheries issues by allowing a cause of action for negligent resource-management decisions. Holding ADF & G "to an actionable 'duty of care,' . would expose [it] to the tort claims — real or imagined — of disaffected [resource users] in countless numbers." Id. IV. CONCLUSION We conclude that the relationship between Heckman and ADF & G does not support an actionable duty. Accordingly, we REVERSE the superior court's denial of ADF & G's motion to dismiss. . Because Judge Wood considered materials outside the pleadings, we will review his decision as a denial of a summary judgment motion. See Homeward Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d 610, 612 (Alaska 1990). We therefore review the record de novo and, taking the facts in the light most favorable to the nonmoving party, determine whether any genuine issue of material fact exists and .whether the moving party is entitled to judgment as a matter of law. See Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1015 (Alaska 1995). . See, e.g., Myers v. United States, 17 F.3d 890, 900 (6th Cir.1994) (holding that government mine inspectors' duty ran only to government, not to miners); Clemente v. United States, 567 F.2d 1140, 1144-45 (1st Cir.1977) (holding that FAA inspectors' duty ran only to government, not to public). . In so observing, we do not suggest a revival of the "public duty doctrine," which we laid to rest in Adams v. State, 555 P.2d 235, 241-42 (Alaska 1976), and declined to resurrect in City of Kotze-bue v. McLean, 702 P.2d 1309, 1311-12 (Alaska 1985). Our observation pertains not to ADF & G's abstract "public duty to all." Adams, 555 P.2d at 241. Rather, the point we malee is that the specific actions at issue here — the decisions ADF & G' based on Mesiar's data — simultaneously affected multiple and potentially conflicting classes of resource users. Proximity in time and place to an ADF & G resource-management action confers no automatic right of preference to one group of affected resource users over another. Accordingly, for purposes of defining "the class of cases to which our ruling[] will apply," McLean, 702 P.2d at 1314, it is inconsequential that ADF & G's actions in the present case more immediately and directly affected the interests of Yukon River users of the fall chum-salmon run than the interests of other potential salmon users. . Compare, e.g., Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1016-17 (Alaska 1995) (imposing no duty of care in identifying remains), and Stephens, 746 P.2d at 911-12 (imposing no duty of care in bringing lawsuit), with R.E. v. State, 878 P.2d 1341, 1347 (Alaska 1994) (imposing duty of care in licencing day-care facility), Division of Corrections v. Neakok, 721 P.2d 1121, 1129 (Alaska 1986) (imposing duty of care in controlling parolee who later killed people), and City of Kotzebue v. McLean, 702 P.2d 1309, 1314 (Alaska 1985) (imposing, duty of care in responding to identified caller who threatened to kill). . See, e.g., Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996); Stepovak-Shumagin Set Net Ass'n v. State, Bd. of Fisheries, 886 P.2d 632 (Alaska 1994); Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391 (Alaska 1990); Meier v. State, Bd. of Fisheries, 739 P.2d 172 (Alaska 1987). . Our decision that ADF & G owed Heckman no actionable duty of due care makes it unnecessary to consider the parties' immunity arguments. See Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1017 (Alaska 1995).

6986478

Melvin B. GILLIS, Appellant, v. ALEUTIANS EAST BOROUGH and State of Alaska, Department of Natural Resources, Appellees

Gillis v. Aleutians East Borough

2011-08-19

No. S-13620

118

124

258 P.3d 118

258

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Melvin B. GILLIS, Appellant, v. ALEUTIANS EAST BOROUGH and State of Alaska, Department of Natural Resources, Appellees.

Melvin B. GILLIS, Appellant, v. ALEUTIANS EAST BOROUGH and State of Alaska, Department of Natural Resources, Appellees. No. S-13620. Supreme Court of Alaska. Aug. 19, 2011. J.P. Tangen, Anchorage, and Lawrence V. Albert, Anchorage, for Appellant. Joseph N. Levesque, Walker & Levesque, LLC, Anchorage, for Appellee Aleutians East Borough. John T. Baker, Assistant Attorney General, Anchorage, and Daniel 8. Sullivan, Attorney General, Juneau, for Appellee State of Alaska. Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

3561

22229

OPINION WINFREE, Justice. I. INTRODUCTION The superior court interpreted a statutory preference for the purchase of state land in a manner disqualifying an applicant. Because the superior court correctly interpreted the statute, we affirm its decision. II. FACTS AND PROCEEDINGS In accordance with article VIII, section 10 of the Alaska Constitution, the legislature enacted the Alaska Land Act shortly after statehood, providing in part "for the selection, acquisition, management, and disposal of Alaska lands and resources. In 1984 the legislature amended the Act, adding a provision granting those meeting certain requirements a preference right to purchase or lease state land. The provision, codified at AS 38.05.035(f), provides in relevant part: The director shall grant a preference right to the purchase or lease without competitive bid of up to five acres of state land to an individual who has erected a building on the land and used the land for bong fide business purposes for five or more years under a federal permit or without the need for a permit and, after selection by the state, under a state use permit or lease, if the business produced no less than 25 percent of the total income of the applicant for the five years preceding the application to purchase or lease the land. In 1985 the State of Alaska, Department of Natural Resources (DNR) promulgated the final regulation interpreting this preference right, which remains unchanged and provides in relevant part: Upon a written finding under AS 38.05.035(e) that the interests of the state will best be served, the director will grant a preference right to lease without competitive bid, or purchase at appraised fair market value, up to five acres of state land to an applicant who submits written proof (1) of entering the land while the land was under federal jurisdiction; (2) of erecting and using, for at least five years while the land was under federal jurisdiction, a building erected under any authorization required under federal law. . Melvin Gillis, a professional sport hunting and fishing guide, obtained a 25-year lease of five acres of state land in April 1989. Gillis built a lodge on the land, and the operation of the lodge and his guiding business provide his principal source of income. In June 2005 DNR conveyed lands, including the land Gillis leased, to Aleutians East Borough. DNR also transferred its interest in CGillis's lease to the Borough. Gillis offered to purchase the land in November 2005. The Borough Assembly rejected Gil-lis's offer but proposed a new lease agreement. Gillis did not execute the proposed lease, and in 2007 he claimed he was eligible to purchase the land under AS 88.05.0835(f). The Borough maintained Gillis did not qualify for a preference right under subsection .035(f) because his lease commenced after the federal government transferred the land to the state. In 2008 Gillis reiterated his preference-right claim. The Borough then filed a declaratory judgment action, asking the superior court to determine whether Gillis qualified for a preference right to purchase the land under subsection .035(F). Gillis counterclaimed against the Borough, filed a third-party complaint against DNR, and moved for partial summary judgment against both parties The Borough and DNR crosg-moved for summary judgment. At issue was whether subsection .035(f) required an applicant to enter land while it was under federal ownership as a condition of the preference right. The superior court concluded that the plain meaning of subsection .085(f) required an applicant to enter land when it was under federal ownership before the federal government conveyed the land to the state. The court noted the legislative history indicated subsection .085(f) was remedial and intended "for a limited class of people." The court also noted DNR's implementing regulation tracked subsection .085(f)'s plain meaning. The court entered summary judgment in favor of the Borough and DNR. Gillis appeals. III. STANDARD OF REVIEW We review an agency's interpretation of a statute using our independent judgment when "the agency's specialized knowledge and experience would not be particularly probative on the meaning of the statute." "We will adopt the rule of law that is most persuasive in light of precedent, reason, and policy after considering the plain meaning of the statute, the legislative purpose of the statute, and the intent of the statute." IV. DISCUSSION A. Plain Meaning And In Pari Materia Gillis argues that AS 88.05.085(F)'s plain meaning does not require an applicant to enter land while it is under federal ownership to qualify for the preference right. According to Gillis subsection .085(F) fails to "statle] that entry under federal tenure is required whereas [it] does say that entry under a state use permit or lease is required." He asserts that subsection .085(f) "deals with federal permitting only and does not address the underlying land status." Gil-lis maintains that because he entered state land and otherwise met the conditions of subsection .035(f), he is eligible for the preference right. We disagree. The plain language of AS 38.05.035(f) requires an applicant to have entered land while it was under federal ownership to qualify for the preference right. Subsection .085(f)'s crucial language is: "erected a building on the land and used the land . under a federal permit or without the need for a permit and, after selection by the state, under a state use permit or lease." Because the federal government owned and administered all land available for state selection, land remained under federal ownership until selected by the state. The legislature's use of the conjunction "and," combined with the phrase "after selection by the state," indicates that the subsection applies to an applicant who, along with obtaining the necessary federal permits, erected a building on and used what was then federal land and continued using that land after state selection. (Gillis's interpretation ignores the subsection's conjunction before the temporal requirement; his interpretation would be more appropriate if the statute said "or, after selection by the state" instead of "and, after selection by the state." Gillis next argues that AS 38.05.035(f) should be interpreted in pari materia with the Alaska Land Act's other preference-right provisions Gillis asserts the legislature knew how to require federal tenure as an element for a preference right when it used the phrase "federal land subsequently acquired by the state" in AS 88.05.085(b)(8) and provided for entry onto land "before January 3, 1959," the date of Alaska statehood, in AS 38.05.035(b)(5), both enacted before subsection .085(f).4 Gillis argues this language's absence from subsection .0835(f) favors his interpretation. Assuming these preference rights should be read in pari materia, we find Gillis's argument unpersuasive. The legislature employed inconsistent terminology to convey preference right conditions and temporal requirements, such as when it required actions on or to land before statehood or state selection. We also distinguish subsection .085(f) from subsection .035(b)(8), which "grant[s] a preference right to a claimant who shows bona fide improvement of state land or of federal land subsequently acquired by the state." Subsection .085(b)(8) does not require the applicant to act before the state acquires federal land and uses the conjunction "or" before the temporal requirement. In comparison, subsection .085(f) does require an applicant to act prior to state selection and uses the conjunction "and" before the temporal requirement. We conclude that evaluating AS 38.05.035(f) in light of the above-mentioned preference rights supports interpreting the statute according to its plain meaning-an applicant must have entered the land while it was under federal ownership to qualify for the preference right. B. Legislative History And Intent On May 16, 1984, then-DNR Commissioner Esther Wunnicke testified before the House Committee on Finance regarding the proposed business preference right. Wunnicke testified that DNR "was closely involved as the Senate Resources Committee developed the bill" Wunnicke explained the proposed bill "provid[ed] for a new preference right that would provide an applicant . with an assured right to state land." 'Wun-nicke hypothesized that an applicant would "usually [be] a sport hunting or fishing guide who has had a lodge on federal land that has come into state ownership." Although "supportive of preference rights," Wunnicke expressed concern, due to timing and resource constraints, that the proposed bill would create "a new class of about 100 preference right applicants. Ten days later the legislature published a document explaining changes to the House of Representatives version of Senate Bill 375, the bill amending the Alaska Land Act and adding the preference right. According to the document, the House's preference right language added six provisions: (1) a "5 acre parcel"; (2) the applicant "erected a building on the land"; (8) the applicant "used land for business purposes for 5 years under federal permit or without the need for a permit"; (4) the applicant "earned 25% of total income from the business"; (5) the applicant purchases the land at "fair market value"; and (6) DNR "may deny [the preference right] if [it] interferes with public use by residents. The document noted that the preference right "would usually apply to hunting and fishing guides [and DNR] estimates 100 claimants statewide." In early June 1984 the Senate Committee on Resources summarized the final version of Senate Bill 375, noting that it in part "[glrants a preference right to long-term landholders who have derived business income from the land. On July 5, 1984, the Governor signed the bill and subsection .085(f) became effective one day later. When examining legislative history we bear in mind that the statutory language's clarity places "a greater burden on . the party seeking to dissuade us from giving the statute its apparent meaning. But even when a statute appears facially unambiguous, we will examine the legislative history as it "may demonstrate that an ambiguity, although not apparent on the face of the statute, does exist with respect to the legislature's use of a particular term." If the legislative history demonstrates no ambiguity, then this court adheres to the statute's language and will not modify or extend it by judicial construct. Gillis argues that Wunnicke's testimony is not probative of legislative intent and should not be afforded deference. But Wunnicke's testimony and the subsequent consistent legislative documentation indicate subsection .085(F) was intended to provide a limited preference right to a small number of people who entered federal land that later came into state ownership. If subsection .085(f) constituted the general land disposal program Gil-lis argues for, we would expect a more thorough legislative debate about its seope and a much richer legislative history supporting Gillis's position. This limited legislative history does not create an ambiguity that would require us to deviate from subsection .085(f)'s plain meaning. Gillis challenges the superior court's determination that AS 88.05.035(f) serves equitable and remedial purposes as "unsupported or otherwise contradicted by extrinsic sources of legislative history," including Wunnicke's testimony and DNR's administration of subsection .085(f). Gillis contends the legislature did not intend subsection .035(f) to apply to federal land because the legislature enacted it 25 years after statehood. Gillis also criticizes the superior court for its "speculative conclusion" that without a requirement to enter federal land the subsection would create an "expanding class" of applicants for preference rights. Gillis's arguments are unpersuasive. First, granting a preference right to applicants who legally constructed a building on and used federal land serves an equitable and remedial purpose-ensuring that those who did so would not lose their interest solely due to the land being transferred from federal to state ownership. Second, 1984 corresponds with the end of the 25-year period granted in the Alaska Statehood Act for the state to select federal land; therefore subsection .085(f)'s reference to federal land and land selected by the state is logical. Third, we agree with the superior court that Gillis's interpretation of subsection .085(f), which does not require entry on federal land, would result in an ever-expanding class of applicants for preference rights contrary to the plain meaning and legislative history of subsection .035(f). C. DNR's Regulation And Decisions Gillis argues that we should apply our independent judgment and not defer to 11 AAC 67.053, DNR's 1985 regulation implementing AS 38.05.035(f), because: (1) the regulation refers to "federal jurisdiction," which he argues is distinct from and broader than federal ownership; and (2) DNR did not adequately explain its previous denial of an application for a preference right. We agree with Gillis that jurisdiction and ownership carry distinct meanings. But the consistent and longstanding manner in which DNR has applied both its regulation and subsection .035(f) helps resolve any possible ambiguity in either the subsection or regulation. Although we agree with Gillis that we use our independent judgment, "we have recognized that an agency's interpretation of a law within its area of jurisdiction can help resolve lingering ambiguity, particularly when the agency's interpretation is longstanding. 4 DNR denied a request for a preference right in 1986 in part because the applicant failed to prove he entered federal land before state selection; DNR denied an informal request in 2008 for the same reason. DNR's interpretation of subsection .085(f) and application of 11 AAC 67.053 span decades and support our plain meaning interpretation. D. Absurd Results Gillis finally argues that interpreting AS 38.05.085(f) as requiring an applicant to enter federal land creates an absurd result "because no person would ever qualify for the preference right." Gillis concedes that requiring entry on federally owned land is not by itself absurd, but argues that when considering the legislative history and DNR's administration of the statute the result is absurd. We disagree. We have recognized that "[iln ascertaining the legislature's intent, we are obliged to avoid construing a statute in a way that leads to a glaringly absurd result. Although an interpretation nullify, ing a statute can sometimes produce an absurd result, interpreting this statute as requiring an applicant to have entered federal land, thereby limiting the number of eligible applicants, neither invalidates subsection .035(f) nor contradicts the legislative intent of providing a narrow preference right. v. CONCLUSION We AFFIRM the superior court's interpretation of AS 38.05.035(f) and its summary judgment decision. . Ch. 169, SLA 1959 (codified at AS 38.05.005-990); Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006, 1009 (Alaska 1967); see also Alaska Const. art. VIII, § 10 ("No disposals or leases of state lands, or interests therein, shall be made without prior public notice and other safeguards of the public interest as may be prescribed by law."). . Ch. 152, § 20, SLA 1984 (codified at AS 38.05.035(f)). A preference right allows for the purchase or lease of state land without competitive bid. See, eg., AS 38.05.035(b)(2), (b)(3), (D. . 11. Alaska Administrative Code (AAC) 67.053(a)(1)-(2) (2005). . We adopt the parties' use of various phrasings of "entry" to mean erecting a building and using the land for a business purpose as required under AS 38.05.035(D). . Matanuska-Susitra Borough v. Hammond, 726 P.2d 166, 175 (Alaska 1986); see Longwith v. State, Dep't of Natural Res., 848 P.2d 257, 260 n. 5 (Alaska 1992) ([Thhe interpretation of the statutory requirements for the grant of preference rights does not involve agency expertise." (citing Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168, 173 (Alaska 1985); Kelly v. Zamarello, 486 P.2d 906, 917 (Alaska 1971))). . Bradshaw v. State, Dep't of Admin., Div. of Motor Vehicles, 224 P.3d 118, 122 (Alaska 2010) (citing Rubey v. Alaska Comm'n on Postsecondary Educ., 217 P.3d 413, 415 (Alaska 2009). . See generally Alaska Statehood Act, Pub.L. No. 85-508, § 6(a), 72 Stat. 339, 340-43 (1958), reprinted in 48 U.S.C. ch. 2 (2006) (granting Alaska right to select "public lands of the United States in Alaska" for state land). . We generally construe statutes together, or in pari materia, when they are "enacted at the same time or deal with the same subject matter." Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 (Alaska 1994). . AS 38.05.035(b)(3) provides in relevant part: The director may . grant a preference right to a claimant who shows bona fide improvement, of state land or of federal land subsequently acquired by the state and who has in good faith sought to obtain title to the land but who, through error or omission . has been denied title to it. . AS 38.05.035(b)(5) provides in relevant part: The director may . when the director determines it is in the best interest of the state and will avoid injustice to a person or the heirs or devisees of a person, dispose of land, by direct negotiation to that person who presently uses and who used and made improvements to that 'land before January 3, 1959, or to the heirs or devisees of the person. . Ch. 194, § 1, SLA 1968 (codified at AS 38.05.035(b)(5)); Ch. 58, § 1, SLA 1965 (codified at AS 38.05.035(b)(3)). . Compare AS 38.05.035(b)(5) (allowing for disposal of land when it "is in the best interest of the state and will avoid injustice to a person . who presently uses and who used and made improvements to that land before January 3, 1959" (emphasis added)), with AS 38.05.820(a) (announcing state's policy "to allow preference rights for the acquisition of tide and submerged land occupied or developed for municipal business, residential or other beneficial purposes on or before the date of admission of Alaska into the Union" (emphasis added)). . Compare AS 38.05.035(f) (granting "preference right to . an individual who has erected a building on the land and used the land for bona fide business purposes . under a federal permit or without the need for a permit and, after selection by the state, under a state use permil or lease"), with AS 38.05.035(b)(3) (granting "preference right to a claimant who shows bona fide improvement of state land or of federal land subsequently acquired by the state"). . Hearing on C.S.S.B. 375 Before the House Comm. on Fin., 13th Leg.2d Sess. (May 16, 1984) (testimony of Esther C. Wunnicke, Comm'r, Dep't of Natural Res.), available at Alaska Leg. Microfiche Collection no. 2863. . Id. . Id. . Id. . Id. . Alaska State Legislature, S.B. 375, 13th Leg.2d Sess. (May 26, 1984), available at Alaska Leg. Microfiche Collection nos. 2858-59. . Id. . Id. . Sen. Comm. on Res., Final Version of S.B. 375, 13th Leg.2d Sess. (June 4, 1984). . Ch. 152, § 1-87, SLA 1984. . State, Dep't of Natural Res. v. City of Haines, 627 P.2d 1047, 1049 (Alaska 1981). . Id. at 1049 n. 6. . Id. (citing City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 635 n. 31 (Alaska 1979). . Gillis also discounts an Attorney General letter to the Governor interpreting subsection .035(f) as requiring applicants to enter federal land and recomménding that the Governor sign the bill. See State or Araska, Dep't or Law, Op. Art'v GEen, file no. 388-162-84 (July 3, 1984). The superior court, however, mentioned the letter only to note that others thought the statute was ambiguous; it did not rely on the letter to support its interpretation of subsection .035(f). . See Alaska Statehood Act, Pub.L. No. 85-508, § 6(a)-(b), 72 Stat. 339, 340-43 (1958), reprinted in 48 U.S.C. ch. 2 (2006) (requiring slate to select land "within twenty-five years after the date of the admission of the State of Alaska into the Union"). . See supra text accompanying note 3. . "Jurisdiction" is defined as a "government's general power to exercise authority over all persons and things within its territory" and a "geographic area within which political or judicial authority may be exercised." Brack's Law DictioNary 927-28 (9th ed. 2009). "Federal jurisdiction" is defined as "[the exercise of federal-court authority." Id. at 929. "Ownership" is defined as "[the bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others." Id. at 1215. . Bartley v. State, Dep't of Admin., Teachers' Ret. Bd., 110 P.3d 1254, 1261 (Alaska 2005) (citing Union Oil Co. v. State, Dep't of Revenue, 560 P.2d 21, 23, 25 (Alaska 1977)). . In 1986 DNR denied the applicant a preference right under subsection .035(f) in part because he failed to provide written proof of "occupancy of the land before its selection by the state." In 2008 DNR denied an informal request for a preference right under subsection .035(f) in part because the potential applicant failed to provide written proof "that he had been using the site prior to the conveyance of th{e] land to the State." . Sherbahn v. Kerkove, 987 P.2d 195, 200-01 (Alaska 1999) (citing Underwater Constr., 884 P.2d at 155 n. 21). . See Premera Blue Cross v. State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171 P.3d 1110, 1120 (Alaska 2007) (holding statutory interpretation that rendered statute "a nullity" created absurd result).

6988404

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

Smith v. State

2011-07-01

No. A-10512

913

923

258 P.3d 913

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

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

Keen SMITH, Appellant, v. STATE of Alaska, Appellee. No. A-10512. Court of Appeals of Alaska. July 1, 2011. Leslie Dickson, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

6049

39224

OPINION MANNHEIMER, Judge. Keen Smith appeals the sentence he received for the crime of first-degree assault (reckless infliction of serious physical injury by means of a dangerous instrument) At his sentencing, Smith asked the sentencing judge to refer his case to the three-judge statewide sentencing panel-the panel of the superior court that is authorized to depart from the normal rules that govern presumptive sentencing. As a basis for sending his case to the three-judge panel, Smith relied on two proposed non-statutory mitigators-ie, two proposed mitigating factors that are not listed in AS 12.55.155(d). First, Smith argued that the superior court should find his offense to be mitigated by the non-statutory mitigating factor that this Court first recognized in Smith v. State, 711 P.2d 561, 571-72 (Alaska App.1985)-the mitigating factor of extraordinary potential for rehabilitation. Second, Smith argued that the superior court should recognize a new non-statutory miti-gator-a mitigator that Smith called "developmental immaturity". This proposed miti-gator would apply to adolescent defendants whose criminal behavior was attributable to the fact that adolescents' brains are not fully developed, and that they therefore lack the degree of judgement and impulse control that a typical adult would have. In our first decision in this case, Smith v. State, 229 P.3d 221 (Alaska App.2010), we remanded Smith's case to the superior court for reconsideration of these two proposed non-statutory mitigators. The superior court again rejected both of Smith's proposed miti-gators. The superior court concluded that Smith failed to prove that he had extraordi nary prospects for rehabilitation, and the superior court rejected Smith's other proposed mitigator, "developmental immaturity", because the court concluded that this proposed mitigator was encompassed within the already-recognized mitigator of extraordinary potential for rehabilitation. For the reasons explained in this opinion, we affirm the superior court's decision with respect to both of the proposed mitigators. Underlying facts Smith entered a negotiated plea in this case, and the plea agreement included a provision that the case would be submitted to the sentencing court on stipulated facts. However, the parties' stipulation did not specify a particular version of the facts as being true. Rather, the parties merely stipulated that various participants and witnesses had given the police different (and sometimes irreconcilable) versions of the incident when they were interviewed during the investigation of this case. Under the terms of the parties' stipulation, these various accounts of the incident were submitted to the superior court, and the superior court was then left to sort out what had really happened. Here is a summary of the information presented to the superior court pursuant to the parties' stipulation: At approximately 12:80 a.m. on the night of November 1-2, 2007, Byron Rogers and Allen Odomin (two roommates who worked together at a restaurant) left work and stopped at Party Time Liquor to purchase alcoholic beverages. At the liquor store, they ran into Jonathan Odomin (Allen's brother) and Jonathan's girlfriend, Amanda Walker. Amanda Walker is the sister of Rigoberto Walker, the shooting victim in this case. After running into each other at the liquor store, the four youths all went back to the apartment complex where they lived. (Rogers and Allen Odomin lived in the same complex as Jonathan Odomin and Amanda, but on a different floor.) Rigoberto Walker was, at this time, on the run from the juvenile justice system; he had taken refuge with his sister Amanda and her boyfriend Jonathan. About an hour later, Jonathan Odomin knocked on the window of the apartment shared by Byron Rogers and Allen Odomin. Jonathan was bleeding from a split lip, and he reported that he had just been beaten up in the front yard of the apartment complex. Jonathan then ran upstairs to his own apartment, to tell Amanda and her brother Rigoberto what had happened. A little later, Jonathan Odomin, his brother Allen, and Byron Rogers saw Rigoberto Walker standing across the street from the apartment complex, arguing with three juvenile males. These three juvenile males were later identified as J.T., age 14, Daniel Byrd, age 16, and the defendant in this case, Keen Smith, age 16. Jonathan mistakenly thought that the three juveniles who were arguing with Rigoberto were the same people who beat him up. (Subsequent investigation revealed that Jonathan Odomin was beaten up by three different (and still unidentified) young men who just happened to be passing by the apartment complex.) In other words, Keen Smith and his two companions had not committed this earlier crime, but Rigoberto Walker confronted them under the mistaken belief that they were the ones who beat up his sister's boyfriend, Jonathan. Smith and his companions denied (%.e., they truthfully denied) that they were the ones who beat up Jonathan, but when Jonathan insisted that they were his attackers, Walker backed him up. Smith and his companions started to walk away, down an alley, but Walker (who apparently was intoxicated) followed the three young men and challenged them to fight. Within a few seconds, Smith pulled out a revolver and handed it to Daniel Byrd. According to Byrd and J.T. (the third companion), Smith encouraged Byrd to shoot Walker. Smith, however, repeatedly denied this when he was later interviewed. According to Smith, he handed the gun to Byrd because thought he was about to engage in a fist fight with Walker, and he did not wish to be carrying a loaded gun in his waistband when he did so. Smith declared that he was taken by surprise when Byrd used the gun to shoot Walker. In any event, whether or not Smith encouraged Byrd to shoot, it is clear that Wailker himself encouraged Byrd to shoot. In Walker's later statement to the police, he acknowledged that he told Byrd, "You can fire right now." And J.T. confirmed that Walker told them, "Shoot me." Moreover, according to the statements given by Byrd and Smith, Walker was actually taunting them to shoot. Smith told the police that Walker was saying, "Tll take all three of you at the same time. You['re] all some bitches. You['re] all some bitches. Shoot me! Shoot me!" And Byrd told the police that Walker said to him, "Shoot me, shoot me! Hurry up, nigger. Don't be a bitch." (Walker, Byrd, Smith, and J.T. all are black.) With Walker taunting Byrd to shoot, Byrd closed his eyes and pulled the trigger; Walker was hit. Smith, Byrd, and J.T. then ran away and hid the gun. Later, J.T. led the police to the place where they had thrown away the gun, and the police retrieved the weapon. Both Smith and Byrd (who, as explained above, were 16 years old at the time) were indicted as adults for attempted murder. They were also indicted for first-degree assault (because Walker was seriously wounded), and for tampering with physical evidence (for throwing the revolver away). Approximately six months later, Smith reached a plea agreement with the State. Under the terms of this agreement, Smith pleaded guilty (as an adult) to first-degree assault, with open sentencing within the applicable presumptive sentencing rules, and the other criminal charges were dismissed. Superior Court Judge Patrick J. McKay ruled that Smith's sentencing was governed by AS 12.55.125(c)(2), the provision that governs first felony offenders convicted of class A felonies when the defendant either used a dangerous instrument or inflicted serious physical injury on the victim. Under this statute, Smith faced a presumptive range of 7 to 11 years' imprisonment. Judge McKay rejected the State's proposed aggravators and also rejected Smith's proposed mitigators. The judge then imposed a sentence toward the lower end of the presumptive range: 10 years with 3 years suspended (i.e., 7 years to serve). The proposed non-statutory mitigator of "extraordinary potential for rehabilitation" Because Smith argued that two non-statutory mitigators applied to his case, and because the statewide three-judge sentencing panel is the only sentencing court authorized to consider non-statutory mitigators, see AS 12.55.165-175, Smith asked his sentencing judge, to refer his case to the three-judge panel. The first of Smith's two non-statutory miti-gators was "extraordinary potential for rehabilitation" In support of this proposed miti-gator, Smith's attorney presented substantial evidence that Smith's criminal behavior arose from family stresses, from peer-group pressure, and from general teenage immaturity. (As we noted earlier, Smith was 16 years old at the time of this offense.) The chief defense witness on this issue was Dr. Nan Truitt, a clinical psychologist who had worked both at McLaughlin Youth Center and at the adolescent unit at Alaska Psychiatric Institute. Truitt described many factors that pointed toward Smith's successful rehabilitation, and she concluded that Smith had much better chances than the majority of the children whom she had evaluated in her years working with troubled youths. She told the court that she believed, to "a reasonable degree of psychological and scientific certainty", that Smith had an extraordinary potential for rehabilitation, and that he was not likely to re-offend. Truitt acknowledged that she had diagnosed Smith as being on the borderline between "oppositional defiant disorder" and a full-blown "conduct disorder". ("Conduct disorder is the worse category: according to the DSM-IV, the essential feature of a diagnosis of "conduct disorder" is "a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated".) However, Truitt pointed out that, even if Smith should be classified as having a "con-duet disorder", his condition was "adolescent onset"-which was a hopeful sign. According to Truitt, a majority of adolescents with this diagnosis "go on [to] life as a pretty typical adult". We do not wish to suggest that Truitt's testimony came in unchallenged. The prosecutor conducted a detailed and probing cross-examination of Truitt, pointing out that there were other ways to interpret Smith's conduct, and other ways to interpret Smith's performance on the psychological tests. The prosecutor also pointed out that Smith might have lied to Truitt when he described the shooting and his reaction to it. However, the State presented no competing testimony concerning Smith's potential for rehabilitation. A defendant who asserts the non-statutory mitigator of "extraordinary potential for rehabilitation" must prove by clear and convincing evidence that they "can adequately be treated in the community and need not be incarcerated for the full presumptive term in order to prevent future criminal activity." Beltz v. State, 980 P.2d 474, 481 (Alaska App.1999), quoting Lepley v. State, 807 P.2d 1095, 1100 (Alaska App.1991). As we explained in Beltz: Such a prediction of successful treatment and non-recidivism should only be made when the sentencing court is reasonably satisfied both that it knows why a particular crime was committed and that the conditions leading to the eriminal act will not recur-either because the factors that led the defendant to commit the crime are readily correctable or because the defendant's criminal conduct resulted from unusual environmental stresses unlikely ever to recur. 980 P.2d at 481. These, then, were the legal considerations that Judge McKay was to weigh or resolve when he ruled on Smith's proposed non-statutory mitigator. In his decision on remand, Judge McKay acknowledged the scientific research on brain development-and, more specifically, the research indicating that teenagers have not achieved their full adult brain development. Judge McKay "accept[ed] the science on ado-leseent brain development presented by Smith", and the judge indicated that, if Smith's current crime had been an "isolated act", this scientific evidence might have led him to conclude that Smith had extraordinary prospects for rehabilitation. However, Judge McKay concluded that Smith's case did not involve an isolated instance of anti-social behavior. As the judge noted, in the five months preceding the shooting in this case, Smith engaged in two other, separate incidents of law-breaking. In one instance, Smith and some of his friends stole speakers out of a car. Three months later, Smith and his friends threw rocks at moving vehicles (and hit a van full of people in the passenger-side window). Judge McKay further noted that Smith had dropped out of school, he stayed at his father's home only "occasionally", he did not have a job, and he had recently been fined for operating a vehicle without possessing a driver's license or registration. Following Smith's arrest for this shooting, while he was in jail, Smith was "written up" for three infractions: fighting, disorderly conduct, and possession of contraband. Judge McKay concluded that, although Smith was "far from being the worst juvenile offender to appear [before him]", Smith was nevertheless not a law-abiding teenager who "succumbed to adolescent impulsiveness" on an isolated occasion. Rather, Judge McKay found that Smith's history "showed a pattern of misbehavior". Judge McKay acknowledged that, at Smith's original sentencing hearing, he (the judge) had declared that Smith had "a very good chance of rehabilitation". He stated that he still thought this was true-but he explained that Smith's "very good" chance of rehabilitation was not the same as the "extraordinary potential for rehabilitation" required to prove the non-statutory mitigator: The Court [This] Court did not, and does not, find that Smith has an "extraordinary" [potential for rehabilitation]. Under the Beltz standard, this Court is not reasonably satisfied that it knows why this particular crime was committed.... [JJu-venile [impulsiveness] and peer pressure could have played a significant role in the commission of the crime ., but Smith's history prior to the shooting[,] and his conduct in jail while awaiting disposition of [this] case[,] indicate that this was not a one-time incident. The second prong of the Beliz test-"that the conditions leading to the criminal act will not recur"-also [is] not satisfied in this case. [Smith] had two eriminal incidents in the five months leading up to this shooting and [he] racked up three violations while incarcerated. He was apparently unresponsive to his informal [juvenile] probation. [This] Court is far from reasonably satisfied that [Smith's] "criminal conduct resulted from unusual environmental stresses unlikely ever to recur", let alone convinced by clear and convincing evidence of this unlikelihood. In his brief to this Court, Smith asserts that Judge McKay's findings are both unsupported and internally inconsistent. Specifically, Smith notes that Judge McKay declared that he accepted the testimony concerning adolescent brain development-in particular, the fact that adolescents do not have a fully developed ability to control their impulses, and the fact that a great majority of adolescents (approximately four out of five) who engage in unlawful behavior as teenagers do not continue to break the law when they become adults. It is true that Judge McKay stated that he accepted the scientific evidence concerning adolescent brain development. However, as we have described, the judge also stated that he believed Smith's criminal behavior in this case was attributable, not merely to adolescent impulsiveness, but to a more persistent pattern of antisocial behavior. The judge based this conclusion on Smith's delinquent acts (apart from the shooting in this case) and Smith's inability to obey correctional facility rules following his arrest in this case. In his brief to this Court, Smith argues that these delinquent acts and correctional facility infractions are "precisely the type of low-level adolescent conduct [that] the science on adolescent brain development explains". Thus, Smith continues, Judge McKay could not have been uncertain as to why Smith committed the assault in this case. The assault must have been due to Smith's lack of adult brain development. According to Smith, the shooting was "unforeseeable", and "there is simply no reason to assume that incarceration is necessary to prevent Smith from re-offending". But Smith's argument is based on viewing the evidence in the light most favorable to Smith, not the light most favorable to upholding Judge McKay's findings. Judge McKay could reasonably conclude that Smith's string of antisocial behavior did not stem solely from the fact that Smith was an impulsive teenager-that there was something else at work in his personality. And, as Judge McKay remarked, the fact that eighty percent of delinquent teenagers are eventually able to conform their behavior to the requirements of the law means that twenty percent do not develop this ability. Moreover, to the extent that Smith suggests that the shooting was completely "unforeseeable", and that he bears little fault for the shooting, this argument is foreclosed by Smith's decision to plead no contest to first-degree assault. This Court held in Ashenfelter v. State, 988 P.2d 120, 123 (Alaska App.1999), that after a defendant pleads guilty or no contest to a criminal charge, they are not entitled to deny their factual guilt of the charge. Even though a defendant who pleads no contest (like Smith) need not concede the factual truth of the State's allegations, the legal effect of the defendant's no contest plea is that the sentencing court is entitled to treat each element of the offense as proved (despite the defendant's protestations of factual innocence). Scoff v. State, 928 P.2d 1234, 1238 (Alaska App.1996). Smith pleaded no contest to first-degree assault as defined in AS 11.41.200(a)(1). In other words, he agreed that the superior court could (for sentencing purposes) conclusively presume that Smith inflicted serious physical injury on another person by means of a dangerous instrument, and that Smith acted at least recklessly with respect to the possibility that his actions would cause this result. In this context, "recklessly" means that Smith was aware of, and that he consciously disregarded, a substantial and unjustifiable possibility that his act of handing the loaded handgun to his companion, Byrd, would lead to the infliction of serious physical injury Thus, even though Smith may legitimately argue that he did not infend for another person to suffer serious physical injury, Smith is prohibited from arguing that the shooting and the resulting infliction of serious physical injury were "unforeseeable". For these reasons, we affirm Judge McKay's decision that Smith failed to prove the non-statutory mitigator of extraordinary potential for rehabilitation. The proposed non-statutory mitigator of "developmental immaturity" Smith also proposed a new non-statutory mitigating factor which he called "developmental immaturity". In support of this new mitigator, Smith presented testimony pertaining to scientific findings that human brain development is not complete until a person reaches their early to mid-twenties- and that adolescents lack the degree of judgement and impulse control that a typical adult would have. In the portion of his decision addressing this proposed mitigator, Judge McKay declared that "[the science regarding developmental maturity is clear", and he accepted the proposition that "Smith, like most 16-year-olds, was developmentally immature at the time of the shooting". Moreover, Judge McKay accepted the proposition that Smith's crime "was particularly influenced by impulsive behavior and peer pressure, both classic symptoms of developmental immaturity". He concluded that the shooting had been prompted by the fact that Smith and his companions "needed to prove their toughness", and by "tension and mounting peer pressure". Judge McKay also accepted the proposition that Smith and his companions "did not set out to commit any crimes that evening", and that the shooting was "a classic example of impulsive behavior", with "little time for rational thought or introspection". However, Judge McKay declared that he considered all of this information when he evaluated Smith's other proposed mitigator-i.e., when he decided whether Smith had an extraordinary potential for rehabilitation. Judge McKay concluded that the information about human brain development was "simply part and parcel of this [already] established mitigator." The judge acknowledged that his findings-that Smith acted impulsively, and that his conduct was shaped by peer pressure-seemingly supported a finding that Smith had an extraordinary potential for rehabilitation. However, the judge explained that Smith's developmental immaturity was "simply one factor in evaluating [his] potential for rehabilitation": The Court: An offender's youthful age has always been a factor that a sentencing court takes into consideration. Neuroscience has now [given] us [a further justification for] this [practice]. Smith, though, present[s] a pattern of bad decisions.... [Developmental immaturity] is certainly a factor in Smith's sentencing, but that factor is outweighed by the totality of the cireumstances both before and after Smith pulled a revolver out of his waistband.... In his brief to this Court, Smith argues that Judge McKay mistakenly treated "developmental immaturity" as merely a component of the already recognized mitigating factor of "extraordinary potential for rehabilitation". Smith argues that an adolescent's developmental immaturity must be viewed as an independent mitigating factor, apart from the adolescent's prospects for rehabilitation. Smith places primary reliance on the United States Supreme Court's decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Simmons, the Su preme Court held that the cruel and unusual punishment clause of the Eighth Amendment prohibits the states from imposing the death penalty on juveniles. 543 U.S. at 568, 125 S.Ct. at 1194. In Graham, the Supreme Court held that this clause of the Eighth Amendment prohibits the states from sentencing juveniles to life imprisonment without possibility of parole for non-homicide offenses. 130 S.Ct. at 2030. The decisions in Simmons and Grakam are based on the conclusion that juveniles (as a group) are "less deserving of the most severe punishments" because, compared to adults, they exhibit a "lack of maturity and an underdeveloped sense of responsibility", because they are "more vulnerable or susceptible to negative influences and . peer pressure", and because their characters are "not as well formed". Graham, 130 S.Ct. at 2026, citing Simmons, 543 U.S. at 569-570, 125 S.Ct. at 1195. Smith argues that, because of these differences between juveniles and adults, because juveniles "cannot conceptualize long-term consequences" and because their conduct is characterized by a "corresponding impulsivity", this Court should recognize a special "developmental immaturity" mitigating factor that would apply to offenders in their teens and early twenties-a mitigating factor distinct from the already recognized miti-gator for extraordinary prospects for rehabilitation. We reject this proposed mitigating factor for two reasons. First, although the decisions in Simmons and Graham are premised on the recognition that juveniles are less mature and hence less blameworthy than adults, Simmons and G@ra-ham impose fairly narrow restrictions on a state's sentencing authority over juvenile offenders. Simmons holds that the Constitution forbids the states from sentencing juveniles to death, and Grakam holds that the Constitution forbids the states from sentencing juveniles to life imprisonment without possibility of parole unless the juvenile has been convicted of a homicide. But the Supreme Court said nothing to suggest that the Constitution might call for across-the-board mitigation of all other criminal penalties when the offender is a juvenile. Nor does the Court's reasoning in Simmons and Graham lead to such a conclusion. The constitutional evil that the Supreme Court identified in Simmons and Graham is the imposition of a sentence that "alters the offender's life by a forfeiture that is irrevocable"-a penalty that permanently removes a juvenile offender from society, and that can never be modified (absent executive clemency) even if the juvenile offender later matures and demonstrates the capacity to pursue a productive and law-abiding life. Grahkhom, 1830 S.Ct. at 2027. However, Simmons and Grakam do not purport to limit the imposition of lesser penalties on juvenile offenders. In fact, the Grakhom decision holds that it is constitutionally permissible to impose a life sentence on a juvenile (even for a non-homicide offense), and to potentially make the juvenile spend their remaining life in prison, so long as there is an institutionalized legal mechanism available to modify the sentence if the juvenile demonstrates their rehabilitation: The Eighth Amendment does not foreclose the possibility that persons convicted of non[-Jhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. For these reasons, we conclude that the holdings and the reasoning of Simmons and Grakham do not support an across-the-board mitigation of sentences for juvenile offenders who are prosecuted within the adult justice system. Second, Smith's proposal that this Court recognize a mitigating factor for "developmental immaturity" appears to contravene the policy underlying the legislature's creation of aggravating and mitigating factors. As this Court explained in Knight v. State, 855 P.2d 1347, 1349 (Alaska App.1993), the presumptive sentencing range for any given class of case "represents the appropriate sentence for typical cases in that class, a rela tively broad category into which most cases will fall". Aggravating and mitigating factors "define the peripheries" of this broad category of "typical" cases; these factors identify the "relatively narrow cireumstances that tend to make a given case atypical and place it outside the relatively broad presumptive middle ground." Ibid. (quoted with approval by the Alaska Supreme Court in State v. Parker, 147 P.3d 690, 695 (Alaska 2006)). By enacting AS 12.55.165 and 175, the legislature effectively gave the judicial branch (in particular, the three-judge statewide sentencing panel and the appellate courts) the authority to create "non-statutory" aggravating and mitigating factors-i.e., sentencing factors that expand the lists codified in AS 12.55.155(c)-(d). For example, in Smith v. State, this Court adopted the non-statutory mitigator of extraordinary potential for rehabilitation. 711 P.2d at 571-72. But this judicial authority to create non-statutory aggravating and mitigating factors must be exercised in conformity with the legislature's sentencing policy choices. As we explained in Dancer v. State, the judicial power to establish new aggravating and mitigating factors is a legislatively sane-tioned instance of the court's common-law power to develop the law. 715 P.2d 1174, 1179 n. 3 (Alaska App.1986). And when courts exercise this common-law power to declare the law, "the guiding principle is that they should not exercise this authority in disregard of existing constitutional and statutory provisions." Dayton v. State, 120 P.3d 1073, 1080 (Alaska App.2005), quoting Hosier v. State, 957 P.2d 1360, 1364-65 (Alaska App.1998). In Smith, we concluded that it was proper for us to create a non-statutory mitigating factor based on a defendant's extraordinary potential for rehabilitation because this factor was "integrally related to the Chaney [477 P.2d 441 (Alaska 1970) ] sentencing criteria" (i.e., the sentencing criteria codified in AS 12.55.005), and because, if a sentencing court ignored a defendant's demonstrated uncommon potential for rehabilitation, there would be "a tremendous risk . that [the defendant's] sentence [would] be imposed without appropriate regard for the [sentence ing] goal of rehabilitation." 711 P.2d at 570-71. For these reasons, we concluded that the legislature did not intend "to preclude realistic, individualized consideration of the [defendant's] need and potential for rehabilitation in cases involving first felony offenders". Id. at 571. On the other hand, in Totemoff v. State, 739 P.2d 769 (Alaska App.1987), we rejected a proposed non-statutory mitigating factor because we concluded that the proposed miti-gator was inconsistent with legislative intent. The proposed mitigating factor in Totemoff was that a second felony offender's prior conviction was for a felony of lesser seriousness (4.e., a lesser class of felony). When the Alaska Legislature originally enacted the presumptive sentencing law, this factor was codified as a statutory mitigator: see former AS 12.55.155(d)(8). But the legislature later repealed this mitigator, on the ground that it made little sense to "reward" offenders whose criminal behavior was getting progressively worse. Totemoff, 739 P.2d at 776 n. 5. Given the legislature's decision to repeal this mitigating factor, we concluded that the courts could not be permitted to undo what the legislature had done, by resurrecting the repealed statutory mitigating factor as a non-statutory factor: [A] court should not [adopt] a nonstatu-tory mitigating factor . [if] the legislature specifically rejected that factor for inclusion in AS 12.55.155(d). Where the legislature has expressly addressed a consideration, such as the relationship between a defendant's past conduct and his present offense, and [has] imposed limitations on the [sentencing] court's power to consider that relationship in mitigation of [a defendant's] sentence, the [sentencing] court should not [adopt a non-statutory] mitigating factor [that does not comply] with [those] limitations; to do so is to [adopt] a common law development inconsistent with legislation. Totemoff, 739 P.2d at T76G-T7. The unsuitability of a proposed non-statutory mitigator may stem from the fact that the legislature debated that mitigating factor and refused to enact it, or (as in Totemoff ) because the legislature enacted that mitigating factor and then later repealed it. But sometimes a proposed non-statutory miti-gator will be unsuitable because, if adopted, it would conflict with sentencing policies that the legislature has expressed in other ways. An example of this latter situation was presented in Johnson v. State, 762 P.2d 493 (Alaska App.1988). Johnson did not involve a proposed non-statutory mitigator, but rather a proposed interpretation of one of the statutory mitigators codified in AS 12.55.155(d). The defendant in Johnson appealed the sentence he received for first-degree sexual abuse of a ten-year-old child. One of Johnson's claims on appeal was that the sentencing judge should have found his offense to be mitigated under AS 12.55.155(d)(13)-now renumbered as subsection 155(d)(12). This mitigator applies to cases where "the harm caused by [the defendant's] conduct [is consistently] minor and inconsistent with the imposition of a substantial period of imprisonment" We held that the superior court properly rejected this proposed mitigating factor. One of our reasons for reaching this conclusion was that the legislature had enacted fairly severe sentences for first-degree sexual abuse of a minor. Because the legislature "clearly intended a substantial period of imprisonment for those convicted of sexual abuse of a minor", we held that, even in mitigated cases, it would violate this legislative intent if a sentencing court were to treat the sexual abuse of a ten-year-old child as a "minor" offense that was "inconsistent with the imposition of a substantial period of imprisonment". 762 P.2d at 496. We believe that this same reasoning requires us to reject Smith's proposed mitigating factor based on the immature brain development of teenagers and young adults in their early to mid-twenties. Under Alaska law before 1994, any person under the age of 18 who was charged with a felony was prosecuted and (if found guilty) punished under the juvenile delinquency laws contained in Title 47, chapter 10 of the Alaska Statutes. But in 1994, the Alaska Legislature amended the coverage of the juvenile delinquency laws by enacting former AS 47.10.010(e), a statute that is now codified as AS 47.12.030(a). Under this statute, 16- and 17-year-olds who are charged with certain serious felonies (such as first-degree assault, the charge against Smith in this case) are prosecuted and, if found guilty, punished as adults. This change in the law demonstrates a major shift in legislative policy toward older juvenile offenders who commit serious crimes. Instead of treating these offenders leniently on account of their youth, the legislature has decided that these offenders should be prosecuted and punished under the same rules that apply to adults. If this Court were to recognize "developmental immaturity" as a non-statutory miti-gator that applies to all of these offenders, our action would run contrary to this legislative policy. Our recognition of this proposed non-statutory mitigator would, in effect, create a presumption that these older teenagers {indeed, all offenders younger than their mid-twenties) should be treated more leniently, and our decision would require the superior court to transfer the sentencing of all of these younger offenders to the statewide three-judge sentencing panel-since the three-judge panel is the only sentencing court authorized to consider non-statutory aggravating and mitigating factors. In his supplemental brief, Smith argues that our recognition of his proposed mitigating factor would not have these sweeping consequences. He asserts that "not . every youthful offender would automatically be entitled to this [proposed] mitigator". (Emphasis in the original) Rather, Smith argues, "Itlhe onus [would bel on the [individual] defendant to prove this mitigator" by presenting "evidence [relating] to the offender, his behavior, and the offense". But after making these conclusory assertions that individualized proof will be required, Smith fails to explain what kind of individualized proof he is talking about. We are at a loss to know what Smith is referring to. His own offer of proof in the superior court was not an individualized offer of proof. Smith did not present evidence that he personally had immature brain development. Rather, Smith presented evidence that essentially all young adults (%.e., all persons who are younger than their mid-twenties) do not yet have fully developed brains, and we therefore should not expect them to have the same level of judgement and impulse control as fully mature adults. If Smith is asserting that individual defendants would still have to prove that this neurological immaturity had a substantial effect on their decision or willingness to engage in criminal behavior, then we believe the answer to this assertion is the one given by Judge McKay: a youthful offender's neurological immaturity can be considered (on an individualized basis) under the rubric of the existing non-statutory mitigator of extraordinary potential for rehabilitation. For these reasons, we conclude that we should not recognize "developmental immaturity" as a non-statutory mitigator. We are not saying that we distrust the scientific evidence that Smith presented to the superi- or court. Rather, we conclude that, absent a convincing argument that the penalties enacted by the legislature contravene a provision of the constitution, the legislature remains the entity that should decide whether this scientific research calls for a modification of the rules of sentencing, or for changes in the penalty ranges for crimes committed by youthful offenders. Conclusion The judgement of the superior court is AFFIRMED. . AS 11.41.200(a)(1). . See AS 12.55.175. . This mitigator was recognized and defined by this Court in a series of cases beginning with Christopher Smith v. State, 711 P.2d 561 (Alaska App.1985). . See AS 11.81.900(a)(3) (defining "recklessly"). . 762 P.2d at 494-95. . Id. at 495-96. . Id. at 496. . AS 47.12.030(a) provides: When a minor who was at least 16 years of age at the time of the offense is charged by complaint, information, or indictment with an offense specified in this subsection, this chapter and the Alaska Delinquency Rules do not apply to [that] offense . or to any additional offenses joinable to it under the applicable rules of . criminal procedure. The minor shall be charged, held, released on bail, prosecuted, sentenced, and incarcerated in the same manner as an adult. If the minor is convicted of an offense other than an offense specified in this subsection, the minor may attempt to prove, by a preponderance of the evidence, that the minor is amenable to treatment under this chapter. If the court finds that the minor is amenable to treatment under this chapter, the minor shall be treated as though the charges had been heard under this chapter, and the court shall order disposition of the charges of which the minor is convicted under AS 47.12.120(b). The provisions of this subsection apply when the minor is charged by complaint, information, or indictment with an offense (1) that is an unclassified felony or a class A felony and the felony is a crime against a person; (2) of arson in the first degree; (3) that is a class B felony and the felony is a crime against a person in which the minor is alleged to have used a deadly weapon in the commission of the offense and the minor was previously adjudicated as a delinquent or convicted as an adult, in this or another jurisdiction, as a result of an offense that involved use of a deadly weapon in the commission of a crime against a person or an offense in another jurisdiction having elements substantially identical to those of a crime against a person, and the previous offense was punishable as a felony; in this paragraph, "deadly weapon" has the meaning given in AS 11.81.900(b); or (4) that is misconduct involving weapons in the first degree under (A) AS 11.61.190(a)(1); or (B) AS 11.61.190(a)(2) when the firearm was discharged under circumstances manifest ing substantial and unjustifiable risk of physical injury to a person.

6988230

Winona M. FLETCHER, Appellant, v. STATE of Alaska, Appellee

Fletcher v. State

2011-06-10

No. A-10455

874

878

258 P.3d 874

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

Before: COATS, Chief Judge, BOLGER, Judge, and ANDREWS, Senior Superior Court Judge.

Winona M. FLETCHER, Appellant, v. STATE of Alaska, Appellee.

Winona M. FLETCHER, Appellant, v. STATE of Alaska, Appellee. No. A-10455. Court of Appeals of Alaska. June 10, 2011. Beth GL. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel 8. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, BOLGER, Judge, and ANDREWS, Senior Superior Court Judge. Sitting by assignment made pursuant to article IV, section 11, of the Alaska Constitution and Administrative Rule 23(a).

2215

14282

OPINION BOLGER, Judge. In 1985, the superior court waived juvenile jurisdiction over Winona M. Fletcher, and she then pleaded no contest to two counts of first-degree murder and one count of second-degree murder. In 2005, Fletcher filed an application for post-conviction relief, alleging that new evidence required that her convietion be vacated. The new evidence consisted of the recantation of Fletcher's co-defendant and new research on juvenile brain development suggesting that she would have been amenable to treatment as a juvenile. The superior court dismissed Fletcher's application, and she now appeals. We conclude that Fletcher's claim is non-jurisdictional and that she waived her right to contest any non-jurisdictional defects in the juvenile waiver proceeding when she entered her pleas of no contest. Background In April 1985, Fletcher and her boyfriend Cordell Boyd foreed their way into the home of Tom and Ann Faccio and Emilia Elliott. At the time, Fletcher was fourteen years old and Boyd was nineteen years old. Boyd demanded money from Mr. Faccio, who gave Boyd approximately $700. Fletcher shot and killed Ms. Faccio and Elliott, and either Boyd or Fletcher shot and killed Mr. Faccio. The State filed a petition for waiver of juvenile jurisdiction over Fletcher. Boyd testified against Fletcher at the waiver hearing. Based on Boyd's testimony, the court found that, before the robbery, Boyd did not have any interest in killing the victims, but Fletcher explicitly stated that she was willing to kill them. The court also found that Fletcher "was not forced, coerced, induced, or under influence by Boyd when she shot Ann Faccio and Emilia Elliott." Accordingly, the court concluded that there was probable cause to believe that Fletcher committed first-degree murder in the killing of Mr. Faccio, Ms. Faceio, and Elliott. Five mental health professionals-Drs. James Harper, David Coons, Michael Rose, Irvin Rothrock, and Deborah Geeseman-testified about Fletcher's amenability to treatment. Dr. Harper testified that Fletcher has a moral deficiency that caused her to lack normal emotional feelings. Drs. Harper, Rothrock, Rose, and Coons testified that an individual with Fletcher's personality fea tures has a "poor prognosis for rehabilitation." Dr. Geeseman was the only expert who believed that there was a likelihood that Fletcher could be successfully treated before she turned twenty. The court concluded that Fletcher would be unamenable to treatment before reaching twenty years of age. The court therefore waived juvenile jurisdiction over Fletcher Fletcher was indicted on three counts of first-degree murder. Fletcher then pleaded no contest to two counts of first-degree murder and one count of second-degree murder. The court originally sentenced Fletcher to consecutive terms of ninety-nine years of imprisonment for each count, but her sentence was later reduced to three consecutive, forty-five-year terms. In December 1986-two days after Fletcher was sentenced-a newspaper article stated that Boyd had recanted 'his testimony from the waiver hearing when he said the killings were Fletcher's idea. In the article, Boyd stated that he told Fletcher to kill Ms. Faccio and Elliot. He indicated that he was telling the truth "for Winona's sake" and admitted that he "still care[d] for his onetime love." . In June 1987, Boyd was interviewed by Fletcher's attorney. During the interview, Boyd again stated that he lied during the waiver hearing. Boyd stated that he was primarily responsible for the murders and that he told Fletcher to kill the women. On August 5, 2005, Fletcher filed an application for post-conviction relief. Fletcher alleged in her amended application that Boyd's recantation and new developments in juvenile brain research had altered the opinions of the mental health professionals who evaluated Fletcher's amenability to treatment. Fletcher alleged that this new evidence could have caused the court to deny the State's motion to waive juvenile jurisdiction and that the adult court would not have had jurisdiction over her. To support her application, Fletcher included updated opinions from three of the five mental health professionals who originally evaluated her amenability to treatment. In particular, Dr. Harper indicated that "had the new juvenile brain development research, as well as Mr. Boyd's new statement been available at the time [he] evaluated [Fletcher], this data would have affected [his] findings, inferences based on those findings, and ultimate opinion." Based on this new information, Dr. Harper indicated he "would almost certainly have concluded that Winona Fletcher could be (or could have been) rehabilitated by her 21st birthday." The State filed a motion to dismiss Fletcher's application and Superior Court Judge Philip R. Volland granted the motion. Judge Volland concluded that Fletcher's application was barred by the statute of limitations because she did not present anything that legally qualified for the exception for newly discovered evidence. The court also concluded that Fletcher waived any defects in the juvenile waiver proceeding by pleading no contest in adult court. Fletcher now appeals the superior court's order dismissing her application. We review this ruling as an order granting summary disposition, viewing the evidence in the light most favorable to Fletcher and independently determining whether the State was entitled to dismissal as a matter of law. Discussion A criminal defendant waives all non-jurisdictional defects in the previous proceedings when she enters a plea of guilty or no contest. In other words, when a defendant enters a no contest plea, she "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the . plea" Jurisdictional defects, which cannot be waived, include those constitutional de-feets that cannot be cured-issues that would forever preclude the defendant's conviction, regardless of his factual guilt. The lack of subject matter jurisdiction is a jurisdictional defect that is not waived by a no contest plea. But personal Jurisdiction is not a jurisdictional issue of this kind-personal jurisdiction may be acquired by waiver or consent of the defendant. To determine if Fletcher's claim is non-jurisdictional and barred by her plea, we must examine whether her challenge is to the court's subject matter jurisdiction or to an authority similar to personal jurisdiction. The proper classification of Fletcher's claim is a question of law on which we must exercise our independent judgment. The State points out that several courts, applying these distinctions, have held that defects in a juvenile waiver proceeding are non-jurisdictional defects that are waived or forfeited when the defendant enters a no contest plea. For example, in Rodrigues v. Ricketts, the Ninth Cireuit analyzed a case where a seventeen-year-old defendant, Roy Rodriguez, entered a guilty plea to second-degree murder after his case had been transferred to superior court. Rodriguez later filed for habeas corpus and claimed that his Juvenile transfer proceeding was "infected by a number of constitutional errors. The federal court held that "the state superior court always had original jurisdiction over this felony matter. The determination of "whether to try Petitioner in superior court or in juvenile court, which is a division of superior court, does not go 'to the very power of the State to bring the defendant into court to answer the charge brought against him,' and thus does not raise a jurisdictional question. Likewise, in State v. Marks, the Arizona Court of Appeals addressed whether a juvenile waived his objection to the court's jurisdiction where the underlying juvenile transfer order was faulty. While Richard Marks's appeal of the juvenile transfer order was pending, he was convicted as an adult. His juvenile transfer order was ultimately vacated on due process grounds. On appeal, Marks argued that, because the juvenile court did not properly transfer its jurisdiction, the adult court lacked subject matter jurisdiction. The court of appeals noted that the superi- or court is the court of general jurisdiction in Arizona and has jurisdiction over delinquent juveniles and criminal cases amounting to felonies. Although the counties could create juvenile departments within the superior court, this departmentalizing process did "not partition [the superior court's] general subject matter jurisdiction. When a transfer proceeding is flawed, the "consequence is to deprive the adult division of personal jurisdiction over an improperly transferred defendant. Since personal jurisdiction can be waived, Marks effectively waived his objection by failing to object within the specified time frame. In response to these cases, Fletcher points out that other courts have allowed a minor to withdraw a guilty plea to cure constitutional errors in a juvenile waiver proceeding. For example, in Commonwealth v. Cotto, a defendant entered guilty pleas to adult charges, specifically reserving the right to appeal the constitutionality of the juvenile waiver statute. The Pennsylvania Superior Court stated in dicta that issues regarding the constitutionality of juvenile waiver proceedings are jurisdictional issues that are not waived by a minor's guilty plea. Alaska waiver proceedings appear to be more similar to the Arizona proceedings de-seribed in the Ricketts and Marks opinions. In Alaska, the superior court has jurisdiction over both juvenile and adult felony prosecutions. So an attack on the quality of the evidence produced at the waiver hearing does not implicate the subject matter jurisdiction of the court. The waiver hearing only affects the "jurisdiction over the minor," an issue of authority that is similar to personal jurisdiction. Moreover, Fletcher does not raise any serious claim about the constitutionality of the waiver proceeding itself. Fletcher received a hearing with full due process protections, where she was vigorously represented by counsel. The hearing was followed by a direct appeal where she had the opportunity to raise any defects in the waiver proceeding. It was only after the hearing and the appeal were completed that Fletcher made the decision to enter a plea of no contest. Conclusion Fletcher waived the right to contest the result of her juvenile waiver proceeding when she entered her pleas of no contest. In view of this conclusion, we are not required to address Judge Volland's ruling that Fletcher's application was untimely. We AFFIRM the superior court's order dismissing Fletcher's post-conviction application. MANNHEIMER, Judge, not participating. . Former AS 47.10.060 (1984 & Supp. 1985) provides as follows: Waiver of jurisdiction. (a) If the court finds at a hearing on a petition that there is probable cause for believing that a minor is delinquent and finds that the minor is not amenable to treatment under this chapter, it shall order the case closed. After a case is closed under this subsection, the minor may be prosecuted as an adult. . Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App.2011). . Cooksey v. State, 524 P.2d 1251, 1255 (Alaska 1974). . Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). . Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). . See Wanamaker v. Scott, 788 P.2d 712, 713 n. 2 (Alaska 1990) ("A court which does not have subject matter jurisdiction is without power to decide a case, this issue cannot be waived, and can be raised at any point during the litigation."). . See Morgan v. State, 635 P.2d 472, 479 n. 11 (Alaska 1981) (quoting 21 Am.Jur.2d Criminal Law § 379 (1965)); see also S.B. v. State, Dep't of Health & Soc. Servs., 61 P.3d 6, 14 (Alaska 2002) (noting that the respondent waived any objection to personal jurisdiction by failing to raise it). . In re Estate of Fields, 219 P.3d 995, 1003 (Alaska 2009). . See Rodriguez v. Ricketts, 798 F.2d 1250, 1252 (9th Cir.1986); State v. Marks, 186 Ariz. 139, 920 P.2d 19, 21-22 (Ariz. App.1996); State v. Burnight, 132 Idaho 654, 978 P.2d 214, 217-18 (1999); State v. Yodprasit, 564 N.W.2d 383, 384 (Iowa 1997); Waynewood v. State, 552 N.W.2d 718, 719 (Minn.1996); Petition of Nilles, 412 N.W.2d 116, 117-18 (S.D.1987); State v. Griffin, 914 S.W.2d 564, 567 (Tenn.Crim.App.1995); State v. Kraemer, 156 Wis.2d 761, 457 N.W.2d 562, 563-64 (Wis.App.1990). . 798 F.2d at 1251. . Id. . Id. at 1252. . Id. (quoting Blackledge, 417 U.S. at 30, 94 S.Ct. 2098 (citations omitted)). . 920 P.2d at 20-21. . Id. at 21. . Id. . Id. . Id. at 21-22. . Id. at 22. . Id. . Id. . 708 A.2d 806, 808 (Pa.Super.1998). . Id. at 808 n. 1. . See AS 22.10.020(a) ("The superior court is the trial court of general jurisdiction, with original jurisdiction in all civil and criminal matters, including probate and guardianship of minors and incompetents."). . See In re Estate of Fields, 219 P.3d at 1005-06 (holding that, despite statutes specifying special probate procedures, the superior court had general jurisdiction over equity claims and probate jurisdiction over a decedent's estate). . See State v. Ladd, 951 P.2d 1220, 1221 (Alaska App.1998) (referring to the waiver decision as affecting "jurisdiction over the minor"); see also State v. G.LP., 590 P.2d 65, 70 (Alaska 1979) (referring to the waiver proceeding as the process by which the "superior court waives its juvenile jurisdiction over [the juvenile]"). . See W.M.F. v. State, 723 P.2d 1298 (Alaska App.1986).

6988431

Wendell D. BRIDGE, Appellant, v. STATE of Alaska, Appellee

Bridge v. State

2011-08-05

No. A-10176

923

932

258 P.3d 923

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Wendell D. BRIDGE, Appellant, v. STATE of Alaska, Appellee.

Wendell D. BRIDGE, Appellant, v. STATE of Alaska, Appellee. No. A-10176. Court of Appeals of Alaska. Aug. 5, 2011. Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Anne D. Carpeneti, Assistant Attorney General, Criminal Division Central Office, Juneau (brief), Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage (oral argument), and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

5172

32952

OPINION MANNHEIMER, Judge. This appeal requires us to clarify the meaning of the term "correctional facility" for purposes of the second-degree escape statute, AS 11.56.8310. Under subsection (a)(1)(A) of this statute, a person commits the felony of second-degree escape if they unlawfully remove themselves "from a correctional facility" while they are under official detention for any crime, even a misdemeanor. The term "correctional facility" is defined in AS 11.81.900(b)(9) as "premises . used for the confinement of persons under official detention". The question posed in this appeal is whether the word "confinement" is equivalent to "residence" or "placement"-so that the term "correctional facility" would encompass any facility or residence where a prisoner has been ordered to remain by the Department of Corrections. Bridge argues that "confinement" has a narrower meaning-that it applies only when a prisoner's mandated residence at a particular facility is physically enforced by guards and restraints. For the reasons explained in this opinion, we agree with Bridge that, at least for purposes of interpreting the second-degree escape statute, the phrase "premises used for the confinement of persons under official detention" must be given a narrower meaning than "residence" or "placement"-that it applies only to situations where a prisoner's residence is physically enforced. Underlying facts The defendant in this case, Wendell D. Bridge, was charged with a misdemeanor (driving with a suspended license). Because Bridge was unable to make bail, he was remanded to the custody of the Department of Corrections pending his trial. Bridge was initially confined at the Fairbanks Correctional Center. However, when the Department of Corrections conducted their prisoner classification of Bridge, they concluded that he was eligible for placement at the Northstar Center, a halfway house operated by a private corporation in Fairbanks. The Northstar Center has a contract with the Department of Corrections for housing low-security misdemeanor defendants who are awaiting trial or sentencing. Pursuant to this contract, and pursuant to the Department of Corrections' classification decision, Bridge was placed at the Northstar Center. Because Bridge was charged with a crime, was unable to make bail, and was in the legal custody of the Department of Corrections, he was under "official detention"-and he remained under official detention even after he was transferred to the Northstar Center On New Year's Day 2005, Bridge left the Northstar Center without permission. The Northstar staff notified the police, and the district court later issued a warrant for Bridge's arrest. He was arrested some fifteen months later and charged with second-degree escape. In the superior court, Bridge argued that the Northstar Center was not a "correctional facility", and thus his act of walking away from the Center did not constitute second-degree escape. To help resolve this controversy, the superior court held a hearing at which the parties presented evidence concerning Bridge's status at the Northstar Center and the types of security measures employed at the Center. Based on the evidence presented at this hearing, the superior court concluded that the Northstar Center would qualify as a "correctional facility" for purposes of the escape statute (assuming the jury viewed the evidence in the light most favorable to the State). Later, at Bridge's trial, in keeping with this pre-trial ruling, the superior court instructed the jury that "a halfway house under contract with the Department of Corree-tions . is a correctional facility for . individuals placed there by [the Department] for purposes of confinement [awaiting trial or sentencing]." Because it was undisputed that Bridge walked away from the Northstar Center without permission and without justification, the jury convicted Bridge of second-degree escape. In this appeal, Bridge renews his argument that the Northstar Center did not qualify as a "correctional facility" for purposes of the escape statute. If Bridge is correct, then his act of leaving the Northstar Center without permission did not constitute second-degree escape; instead, his action constituted the lesser offense of fourth-degree escape under AS 11.56.330(a)(1). (This statute prohibits any act of "remov[ing] oneself from official detention for a misdemeanor.) This Court's decision in State v. Crosby This Court's decision in State v. Crosby, 770 P.2d 1154 (Alaska App.1989), is the primary appellate court decision construing the term "correctional facility" for purposes of Alaska's second-degree escape statute. Both Bridge and the State discuss Crosby at length in their briefs. Accordingly, to meaningfully address the arguments in the parties' briefs, we must examine the Crosby decision in some detail. The defendant in Crosby was a sentenced prisoner who was released from prison on furlough to a residential drug treatment program, Akeela House. Shortly after Crosby arrived at this residential facility, he walked away. The State charged Crosby with see-ond-degree escape, alleging (in the words of the statute) that he removed himself "from a correctional facility while under official detention. The superior court ruled that Ak-eela House was not a "correctional facility" for purposes of the escape statute, and the State then appealed. The term "correctional facility" is defined in AS 11.81.900(b); it means "[any] premises . used for the confinement of persons under official detention" In Crosby, the State took the position that, under this definition, the term "correctional facility" applied to any facility utilized by the Department of Corrections to house prisoners. But this Court rejected the State's reading of the statutory definition. This Court's explanation of why we rejected the State's interpretation of the statute is lengthy and somewhat difficult to follow, but the salient point -of our analysis was that the statutory definition of "correctional facility" does not encompass any and all premises used for the placement or custody of persons under official detention. Rather, the statute defines "correctional facility" as premises used for the confinement of persons under official detention. Crosby, T7O P.2d at 1155. Because our criminal code contained no definition of "confinement", we engaged in a lengthy analysis of the potential meanings of this word in the context of an escape statute. We concluded that the concept of "confinement" seemed to focus "not so much [on] the extent to which [a person's] freedom is restrained[, but rather on] the specific manner in which the restraints are imposed and enforced". Id. at 1157 (emphasis added). We then offered two different explanations of why Crosby's placement at the Akeela House residential treatment center did not constitute "confinement"-and, thus, why Akeela House was not a "correctional facility" for purposes of the second-degree escape statute. Our decision to offer two different explanations appears to stem from the fact that the trial court record did not offer a clear answer as to whether Akeela House employed security guards or utilized physical restraints or barriers to keep residents from leaving the premises without permission. This Court's first explanation of why Crosby was not in "confinement" at Akeela House was that, even though the conditions of Crosby's furlough from prison required him to remain at Akeela House, this restraint on his liberty was not "imposed or enforced in ways that amount to actual confinement". Ibid. We noted that "there [was] no indication" Akeela House had armed guards, physical restraints or barriers, or other security measures to physically prevent Crosby from leaving. Ibid. This Court's second explanation of why Crosby was not in "confinement" at Akeela House appears to be based on the alternate possibility that Akeela House did, in fact, use guards or physical restraints to prevent residents from leaving without permission. We declared that "[any such] restrictions that Akeela House [placed] on its residents" were imposed for the purpose of furthering its treatment plan, and not because Akeela House was the agent of the Department of Corrections for the purpose of "maintaining security over its prisoners". Ibid. "Thus," we concluded, "to the extent that Akeela House relies on restrictive measures amounting to actual confinement, [this] confinement is clearly not confinement by the state." Ibid. This second rationale appears to be squarely predicated on the fact that Crosby was a furloughed prisoner-ie, someone who had been granted "an authorized leave of absence from actual confinement for a designated purpose and period of time". AS 33.30.901(9) (the definition of "furlough"). In other words, the Department of Corrections had affirmatively decided to relinquish physical custody of Crosby for the purpose of allowing him to participate in the residential drug treatment program at Akeela House. Under the terms of Crosby's furlough, he was obligated to participate in this residential treatment program-but the Department apparently trusted Crosby to do just that, and the Department took no steps (either directly, or through agreement with Akeela House) to physically confine Crosby to the treatment facility. Rather, in the words of AS 38.30.091(9), Crosby was on a "leave of absence from actual confinement". In sum, our decision in Crosby appears to have been ultimately based on the fact that the defendant was on furlough at the time he engaged in his unauthorized departure from Akeela House. But in our discussion of this issue, we suggested that even when a person is under official detention and living at a residential facility, the person is not "confined" there, for purposes of the escape statute, unless (1) the person is required to reside at the facility, (2) the person's required residency is enforced by guards or by physical restraints on the person's ability to leave, and (8) the guards or physical restraints are used at the behest of, or under the agency of, the Department of Corrections for the purpose of maintaining security over its prisoners, rather than for the private purposes of the corporation or group that runs the facility. We note that the Alaska Legislature has not enacted a statutory definition of "confinement", nor has the legislature altered the statutory definition of "correctional facility", since we decided Crosby in 1989. Bridge's argument on appeal In his brief to this Court, Bridge focuses on the portion of Crosby where we suggested that "confinement" hinges "not so much [on] the extent to which [a person's] freedom is restrained{[, but rather on] the specific manner in which the restraints are imposed and enforced". Bridge devotes the majority of his brief to a discussion of the lack of security measures at the Northstar Center. According to the testimony presented at the evidentiary hearing in this case, the Northstar Center is a "non-secure" facility, in that it does not have guards, or a security fence, or even surveillance cameras. Inmates wear their own clothes, they have their own money, and they are not locked inside the facility. The members of the Northstar staff do not carry weapons, and they are instructed not to try to physically restrain inmates who leave the premises. Relying on the absence of guards and physical restraints at the Northstar Center, Bridge argues that the Northstar Center is not a "correctional facility" because he was not subjected to "confinement" in the sense of physical restraints on his freedom. The problem with Bridge's argument is that it hinges on a portion of Crosby that appears to be dictum. As we explained above, the Crosby decision offered two different explanations of why Crosby's residence at Akeela House did not constitute "confinement". The first explanation-i.e., the portion of Crosby that Bridge relies on-dealt with the fact that Akeela House apparently did not utilize guards or physical restraints to keep residents from leaving without permission. But the record was unclear on this point, so this Court offered a second, alternative explanation for why Crosby's residence at Akeela House did not constitute "confinement". And under this second explanation, it was irrelevant whether Akeela House used guards or physical restraints to maintain control of its residents. This Court stated that even if Akeela House did utilize guards or physical restraints to keep residents from leaving, this would not constitute "confinement" for purposes of the escape statute-because these guards and physical restraints were not employed at the behest of the Department of Corrections, but rather were employed for the private purposes of Akeela House. Under this second rationale, the question of whether (or to what degree) the defendant in Crosby was subjected to physical restraints on his liberty during his residence at Akeela House was moot. The answer to this question made no difference to this Court's decision. Thus, our discussion of what type of restraint might constitute "confinement" for purposes of the escape statute became dictum. The question of "confinement" revisited Bridge was not on furlough at the North-star Center. That is, unlike the defendant in Crosby, no one had authorized Bridge to embark on a "leave of absence from actual confinement". Rather, Bridge was a misdemeanor defendant who was awaiting trial, and who had been remanded to the custody of the Department of Corrections because he was unable to make bail. Because of this, Bridge's case requires us to re-examine the question of what constitutes "confinement" for purposes of the escape statute. The State's main argument in this appeal is that Bridge should be deemed to have escaped from "confinement" because the Department of Corrections placed Bridge at the Northstar Center in lieu of housing him at the Fairbanks Correctional Center. The State points out that Bridge knew that he was legally obligated to remain at the North-star Center: Bridge was a prisoner who was being held in custody awaiting his trial, and he remained a prisoner even though he had been granted the benefit of waiting for his trial at a non-prison facility. The State's description of Bridge's status is correct, but the State's argument is essentially the same one we rejected in Crosby. In Crosby, the State argued that the term "correctional facility" applied to any facility utilized by the Department of Corrections to house prisoners. But as this Court noted in Crosby, the statutory definition of "correctional facility" does not encompass any and all premises used for the placement or custody of persons under official detention. Rather, the statute defines "correctional facility" as premises used for the confinement of persons under official detention. Crosby, 770 P.2d at 1155. Thus, we must decide whether the legislature intended the word "confinement" to mean something more specific or limited than "placement" or "custody". One basic difficulty in answering this question is the fact that the word "confinement", like the word "convicted", can mean different things, depending on the context. For example, AS 38.30.065 authorizes the Department of Corrections to allow a prisoner to serve their term of imprisonment, or to serve their period of temporary commitment while awaiting trial, by living at home under electronic monitoring. One might speak of these prisoners as being "confined" to their residence, even though no one is guarding them, and even though they are permitted to leave their home for various authorized purposes. But as we noted in Crosby, the commentary to the draft provisions of our current escape statutes suggests that the word "confinement" was being used in a more restrictive sense-the sense of actual physical restraints placed on a person's movement, enforced by officers whose duty is to keep the person from leaving without permission: [The tentative draft commentary to AS 11.56.310 . suggests that escapes from "correctional facilities" were designated as [a higher degree of crime] because of the heightened danger posed by inmates who seek to remove themselves from secure facilities: The Code classifies all escapes from correctional facilities . as escape in the second degree, a class B felony. Existing law differentiates between an escapee who has committed a felony and one who has committed a misdemeanor; an escape by a misdemeanant is classified as a misdemeanor. The [Criminal Code Revision] Subcommission concluded that the danger to society resulting from correctional facility escapes is substantial, regardless of whether the escapee is a felon or misdemeanant. The classification of all correctional facility escapes as serious felonies is consistent with the Code provision on the justifiable use of force in preventing an escape from a correctional facility[.] Crosby, 770 P.2d at 1155, quoting Alaska Criminal Code Revision, Tentative Draft, Vol. 4 (1977), pp. 47-48. This passage from the commentary to the Tentative Draft suggests that the drafters intended to draw a distinction between (1) all prisoners who unlawfully depart from the premises where they have been placed by the Department of Corrections, and (2) those prisoners who unlawfully depart from a facility where there are restraints or limitations on the prisoners' movement, and where corrections officers or other facility staff, acting as agents of the Department, are charged with the duty of preventing the prisoners from departing without permission. It is in these latter cireumstances that an escape or attempted escape from the facility poses a heightened danger. This was the context in which the Crosby court remarked that the word "confinement", as used in the statutory definition of "correctional facility", and as interpreted in the context of the second-degree escape statute, "seems to deal not so much with the extent to which [a person's] freedom is restrained as with the specific manner in which the restraints are imposed and enforced." Crosby, 770 P.2d at 1157. In other words, there would be no "confinement" if a prisoner is subject only to legal restraints on their physical liberty, in the form of a Department of Corrections order directing them to reside at a particular facility. Rather, "confinement" would exist only when the prisoner's residence at the facility is forcibly maintained. We note that the legislature appears to have used the word "confined" in this same narrow sense in AS 33.30.181(a), a statute that deals with prisoners whom the Department of Corrections has placed in a community restitution center. This statute declares that a prisoner who has been placed in one of these centers "shall be confined to the center at all times" except when the person is at work, or is traveling to and from work (or to attend a job interview), or is absent for another purpose specially approved by the commissioner. In this statute, the phrase "confined to the [community restitution] center" clearly means something more narrow than "placed in a community restitution center" or "classified to a community restitution center". As we noted earlier in this opinion, this is not the only sense in which people use the words "confine" or "confinement". These words can mean different things in different contexts. For example, when our supreme court declared in Rust v. State that the Commissioner of Corrections has the sole discretion to designate "the prison facility to which the prisoner is to be confined", it is clear that the supreme court was using the word "confined" in the broader sense of "placed". Similarly, it may make good sense to give the word "confinement" a broader meaning for purposes of interpreting AS 38.80.1983, the statute that guarantees prisoners meaningful access to the courts for the purpose of challenging "the conditions of the prisoner's confinement". And it would seem that a broader interpretation of "confinement" might be justified when interpreting AS 38.80.211(b), the statute which provides that copies of a prisoner's pre-sentence report "and any other information . that may affect the person's rehabilitation" shall be transmitted to the superintendent of the correctional facility in which the prisoner is "confined". For the same reasons, a broader interpretation of "confinement" might be warranted when interpreting AS 33.36.010, the statute which declares that it is the policy of the State of Alaska "not to transfer a resident inmate [to a facility] outside of [this] state" under the Interstate Corrections Compact "if [the] inmate's continued confinement in Alaska will better facilitate [their] rehabilitation or treatment". In Judge Bolger's dissenting opinion, he asserts that the definition of "confinement" that we adopt in the present case will have manifold unfortunate consequences-because that same definition will apply in all of the contexts we have just mentioned, as well as several other contexts that Judge Bolger lists in his dissent. We disagree. The limited question before us is the proper interpretation of "confinement" for purposes of interpreting the seope of the second-degree escape statute. Our definition of "confinement" for this particular purpose does not necessarily govern the meaning of this term for other purposes-because it is possible for the same word or phrase to have different meanings in different contexts. For example, this Court has repeatedly ree-ognized that the word "conviction" can mean different things, depending on the context of the statute or rule being construed. See Larson v. State, 688 P.2d 592, 597-98 (Alaska App.1984); Kelly v. State, 663 P.2d 967, 971-72 (Alaska App.1983). In the present appeal, our task is to identify the conduct that constitutes an escape from confinement for purposes of the second-degree escape statute. This statute declares that any escape from a "correctional facility" is a class B felony, even when the defendant's underlying criminal conduct (or charged conduct) is only a misdemeanor. As we explained in Crosby, and as we explained earlier in this opinion, the commentary to the Tentative Draft of our criminal code suggests that the legislature's underlying justification for this decision was the perception that escapes from correctional facilities pose a significantly greater degree of danger than other escapes, even when the defendant's underlying crime or criminal charge is not itself particularly serious. But this rationale-the greater potential danger posed by an escape from "confinement"-does not appear to apply to situations like the one presented in Bridge's case: situations where a prisoner simply walks away from a residence where they have been directed to stay. Rather, the legislature's rationale appears to apply only when the restrictions on a prisoner's physical liberty are enforced by officers whose duty is to keep the person from leaving without permission. We agree with the State that a prisoner can be "confined" in a facility, for purposes of the second-degree escape statute, even though that facility does not have "gun tower[s] or a fence topped with barbed wire to keep [prisoners] in place". The paramount distinction between "placement" at a facility and "confinement" at a facility is the presence of corrections officers or other people whose duty is to prevent unauthorized departures from the facility-because the increased danger posed by escapes or attempted escapes from such facilities stems from the conflict or risk of conflict between the prisoner and these officers. Thus, for instance, a work farm that has no towers and no restraining wall or fence could still be a place of "confinement" if it was staffed by corrections officers whose duty was to prevent prisoners from leaving without permission. But on the other hand, the fact that a halfway house has a wall or fence running around the perimeter of its lawn would not, of itself, convert the halfway house to a place of "confinement" if, as in Bridge's case, no officer or staff member had the duty to stop residents from leaving the halfway house without permission. For these reasons, we agree with Bridge that the superior court was wrong to instruct Bridge's jury that the Northstar Center was a "correctional facility" simply because it housed defendants who were placed there by the Department of Corrections pending their trial or sentencing. The Northstar Center's status as a "correctional facility" hinged on an additional question of fact: whether prisoners' residence at the Center was forcibly maintained by corrections officers or by other guards or staff members acting as agents of the Department of Corrections (either formally or de facto ). The procedural posture of Bridge's case During the pre-trial proceedings in Bridge's case, the superior court ruled that it was irrelevant what types of restraints or controls were placed on prisoners at the Northstar Center. Instead, the superior court ruled that any halfway house was a "correctional facility" if, under contract with the Department of Corrections, it housed defendants who were in custody awaiting trial or sentencing. At Bridge's trial, the jurors were instructed in accordance with the superior court's ruling. That is, the jurors were told: "A halfway house under contract with [the] Department of Corrections . is a correctional facility for pre-sentenced individuals placed there by [the Department] for purposes of confinement." In addition, the trial judge barred the defense attorney from arguing that the Northstar Center did not qualify as a "correctional facility" because the Center did not impose physical restraints on the freedom of its residents. As we have explained, this jury instruction and this ruling were wrong. If the staff of the Northstar Center had no duty to physically prevent inmates from leaving without permission, then the Northstar Center was not a "correctional facility"-not a facility where prisoners were "confined". For this reason, Bridge is entitled to a new trial on the charge of second-degree escape. In a single sentence at the end of his opening brief, Bridge asserts that the double jeopardy clause bars the State from retrying him on this charge. This is incorrect. The flaw in Bridge's trial is that the jurors were misinstructed, in the government's favor, on an element of the offense. The constitution does not bar a retrial under these circumstances. If the State believes that it will be unable to establish that the Northstar Center qualifies as a "correctional facility" under the test we have announced here, then the State may ask the superior court to enter judgement against Bridge on the lesser offense of fourth-degree escape under AS 11.56.330(a)(1)-the statute which prohibits any act of "remov[ing] oneself from official detention for a misdemeanor". The judgement of the superior court is REVERSED. . The term "official detention" is defined as "custody, arrest, surrender in lieu of arrest, or actual or constructive restraint under an order of a court in a criminal or juvenile proceeding, other than an order of conditional bail release". AS 11.81.900(b)(40). . Crosby, TIO P.2d at 1154. . Id. at 1155. . Ibid. . Ibid. . At the time of the litigation in Crosby, this definition was found in AS 11.81.900(b)(7). Since then, the statute has been renumbered as section 900(b)(9), but the definition remains the same. . Crosby, 770 P.2d at 1155. . Id. at 1157. . Ibid. . Crosby, 770 P.2d at 1155. . See State v. Otness, 986 P.2d 890, 893 (Alaska App.1999): "This court has recognized that the term 'convicted' can have different meanings, depending on the context. For some purposes, defendants are deemed 'convicted' when a jury or a judge finds them guilty. For other purposes, defendants are not 'convicted' until the court formally enters judgement against them following the sentencing hearing." (Footnotes omitted) . 582 P.2d 134, 137 (Alaska 1978). . See West v. State, 223 P.3d 634, 639-640 (Alaska App.2010); Burks v. United States, 437 U.S. 1, 15-16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978); State v. Kalaola, 124 Hawai'i 43, 237 P.3d 1109, 1141 (2010); State v. Rosaire, 123 N.M. 250, 939 P.2d 597, 601-02 (App.1996).

11683453

Julia D. MOUDY, Appellant, v. SUPERIOR COURT, Appellee

Moudy v. Superior Court

1998-10-02

No. A-6599

469

472

964 P.2d 469

964

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:04:49.072060+00:00

CAP

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

Julia D. MOUDY, Appellant, v. SUPERIOR COURT, Appellee.

Julia D. MOUDY, Appellant, v. SUPERIOR COURT, Appellee. No. A-6599. Court of Appeals of Alaska. Oct. 2, 1998. Louis James Menendez, Juneau, for Appellant. Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER, J., and RABINOWITZ, Senior Supreme Court Justice. Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

1741

11405

OPINION COATS, Chief Judge. The state subpoenaed Assistant Public Defender Julia D. Moudy to appeal' before a grand jury investigating whether her client, Frederick Michaelson, committed the crime of willfully failing to appear for trial in a felony case. Apparently attempting to discover whether Moudy or anyone else at the Public Defender Agency had informed Mi- chaelson of the trial date, the prosecutor asked Moudy several questions pertaining to whether she or anyone else in her office had had contact with Michaelson. Moudy refused to answer these questions; she claimed the attorney-client privilege. Following a hearing, Superior Court Judge Larry Weeks ruled against Moudy's claim of privilege and ordered her to answer. When Moudy still refused to answer, Judge Weeks found her in contempt and fined her $300 a day until she answered. (That order has been stayed pending this appeal.) The issue presented here is whether the attorney-client privilege shields a lawyer from divulging the fact that a conversation has occurred between the lawyer and a client. We conclude that the attorney-client privilege does not protect this information, and that Moudy's attorney-client relationship with Michaelson did not give her the right to refuse to answer the prosecutor's questions about contacts between Michaelson and the staff of the Public Defender Agency. We therefore uphold Judge Weeks' decision to hold Moudy in contempt. At the outset, we note that Moudy raises various procedural challenges to the proceedings in the superior court. However, Moudy did not object to these alleged procedural errors during the litigation in the superior court, and she has failed to show that her substantive rights were affected by any of the alleged procedural flaws. Accordingly, we reject these procedural attacks on Judge Weeks' decision. We now turn to Moudy's primary claim: that the attorney-client privilege authorized her to refuse to disclose whether Michaelson had had contact with the Public Defender Agency. The attorney-client privilege, codified in Alaska Evidence Rule 503, authorizes an attorney "to refuse to disclose . confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." Thus, in broad terms, Moudy is privileged to refuse to disclose the content of any confidential communication between herself and Michaelson if the communication was made to facilitate her legal representation of Michaelson. Besides a client's direct communications with the attorney, the attorney-client privilege also protects the client's communications with "the lawyer's representative^." Thus, not only Michaelson's confidential communications with Moudy, but also Michaelson's confidential communications with other members of the Public Defender Agency's staff would presumptively be protected. However, not all communications between lawyer and client qualify as "confidential communications" within the meaning of Alaska Evidence Rule 503. In Downie v. Superi- or Court, we held that the attorney-client privilege does not shield an attorney from answering whether the attorney ever informed a client of the client's trial date. In accord with the essentially unanimous view of American jurisdictions, we concluded that "the attorney-client privilege protects confidences between attorney and client imparted for the purpose of securing legal advice or representation, but the privilege does not cover an attorney's act of conveying to the client a third-party's communication" such as the trial judge's announcement of a trial date. Moudy's basic argument in this appeal is that Downie sets the outer boundary of per missible questioning, and that the attorney-client privilege protects an attorney from having to provide any other information about his or her contacts with a client, or about contacts between the client and the attorney's staff. This is a misreading of Doumie. When Moudy's case is compared to the facts of Downie, it is evident that Downie posed the more difficult legal issue. The attorney in Downie was ordered to divulge a portion of the content of an attorney-client communication — the fact that the attorney had informed the client of the client's next scheduled court date. Moudy, on the other hand, challenges the superior court's authority to order her to divulge whether an attorney-client communication occurred between Michaelson and other members of the Public Defender Agency staff. The view of courts from around the country is that the attorney-client privilege does not authorize an attorney to refuse to disclose the fact that communications have taken place between a client and an attorney. The case law on this point is summarized in the following passage from Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (7th ed.1998), Vol. 2, pp. 711-12: [T]he [attorney-client] privilege does not protect the preliminary aspects of the attorney-client relationship itself. These matters, which have been referred to as the "incidents of representation," include the client's name, the amount and payment of a fee, and the fact of consultation. The incidents of representation are not generally considered privileged because they are independent of the confidential communications necessary for the representation. The identity of the client, the fee, and the fact and extent of representation are generally incidental to the formation and maintenance of the relationship, and have nothing to do with the free flow of information once that relationship has been established . As Judge Winter stated in the leading case of In re Shargel, 742 F.2d 61 (2d Cir.1984): Absent special circumstances, disclosure of the identity of the client and fee information stand on a footing different from communications intended by the client to explain a problem to [the] lawyer in order to obtain legal advice_ A general rule requiring disclosure of the fact of consultation does not place attorneys in the professional dilemma of cautioning [the client] against disclosure and [thereby] rendering perhaps ill-informed advice or [on the other hand] learning all the details and [thus] perhaps increasing the perils to the client of disclosure. Thus, in most circumstances, the attorney-client privilege does not shield an attorney from disclosing the fact that a client has contacted the attorney or the attorney's firm. Some of the eases that acknowledge and apply this rule are: Matter of Walsh ("Some areas of inquiry have been held not privileged because they are not communications or are not confidential. For example, the fact of communication between a known client and his attorney is not a privileged communication."); United States v. Schenectady Savings Bank ("The fact that a particular known client has communicated with an attorney is not privileged under the general rule."); State v. Breazeale (finding no disclosure of confidential communication when the defendant's former lawyer testified that he had communicated by telephone with the defendant to notify him that his presence in court was required); Seventh Elect Church in Israel v. Rogers (information concerning the amount, source, and manner of payment of legal fees is not protected by the attorney-client privilege because such information does not convey the substance of confidential communications between the attorney and the client); Security Industries, Inc. v. Fickus ("[T]he attorney-client privilege should be applied only to protect communications, not facts."). As explained above, Moudy has been ordered to divulge whether she informed Mi-chaelson of the trial date, and whether Mi-chaelson had contact with other members of the Public Defender Agency. Judge Weeks correctly ruled that the attorney-client privilege did not justify Moudy's refusal to answer the challenged questions. Moudy was properly required to say whether she or any other members of the Public Defender Agency staff spoke with Michaelson. For these reasons, we affirm the judgment of the superior court. Moudy could properly be held in contempt for refusing to say whether communications occurred between Michaelson and members of the Public Defender Agency's staff (including herself). Having affirmed Judge Weeks' decision, we also reaffirm our holding in Downie: the attorney-client privilege does not protect an attorney's act of communicating a trial date to a client: This is true whether the trial date was communicated to the client directly by the attorney or, alternatively, by a member of the attorney's staff. Moudy can be required to answer whether she informed Michaelson of the trial date. Moudy can also be required to answer whether, to her knowledge, another member of the Public Defender Agency staff informed Michaelson of the trial date. If Moudy answers this latter question in the affirmative, her answer might well be hearsay (unless she personally participated in the conversation). However, under Downie, other members of the Public Defender Agency staff can be required to answer whether they informed Michaelson of the trial date. The judgment of the superior court is AFFIRMED, and this case is remanded to the superior court for further proceedings consistent with this opinion. STEWART, J., not participating. .Specifically, Moudy argues: (1) that Moudy's subpoena to attend the grand jury was improperly issued, since the prosecutor had not secured prior judicial approval for the subpoena; see Alaska Professional Conduct Rule 3.8(f)(2); (2) that, when this error was caught, the prosecutor scheduled an expedited hearing in the superior court without following the proper motion practice; (3) that Moudy received only a few hours' notice of this hearing; and (4) that when Judge Weeks ultimately rejected Moudy's claim of attorney-client privilege and held Moudy in contempt for failing to answer questions at grand jury, he failed to reduce his ruling to writing; see Alaska Civil Rule 90(a). . A.R.E. 503(b). . A.R.E. 503(b)(1). . 888 P.2d 1306 (Alaska App.1995). . 888 P.2dat 1308. . Although Saltzburg states (and approves) the general rule that the attorney-client privilege does not shield a lawyer from disclosing the fact of the client's consultation, Saltzburg at the same time acknowledges a limited exception: the attorney-client privilege will shield the lawyer from divulging the fact of a client's consultation if this information would tend to disclose a confidential communication, or if it would tend to disclose the client's previously unrevealed connection to the matter on which legal advice was sought. Id. at 712-13. . 623 F.2d 489, 494 (7th Cir.1980). . 525 F.Supp. 647, 654 (N.D.N.Y.1981). . 11 Kan.App.2d 103, 713 P.2d 973 (Kan.1986). . 102 Wash.2d 527, 688 P.2d 506 (Wash.1984). . 439 P.2d 172, 177 (Alaska 1968).

6986493

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

Pomeroy v. State

2011-05-20

No. A-10588

125

132

258 P.3d 125

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

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

Richard D. POMEROY, Appellant, v. STATE of Alaska, Appellee. No. A-10588. Court of Appeals of Alaska. May 20, 2011. Richard D. Pomeroy, pro se, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

3840

24565

OPINION COATS, Chief Judge. In 2005, Richard D. Pomeroy pleaded no contest to third-degree assault. He later filed a petition for post-conviction relief; this petition was dismissed by Superior Court Judge Philip R. Volland in early 2007. Pomeroy initially filed an appeal challenging the dismissal of his petition, but he later voluntarily abandoned that appeal and, instead, filed a second petition for post-conviction relief. Judge Volland dismissed Pomer-oy's second petition in September 2009, and the case now in front of us is Pomeroy's appeal of the dismissal of that second petition. Pomeroy contends that Superior Court Judge Philip R. Volland should not have adjudicated his second petition because Pomer-oy filed a timely peremptory challenge of Judge Volland under Alaska Civil Rule 42(c)(1). Pomeroy also argues that he received ineffective assistance of counsel during the litigation of his first petition for post-conviction relief. Finally, Pomeroy raises numerous attacks on his underlying eriminal conviction, based on the events surrounding the litigation of that criminal case. For the reasons explained here, we hold that Judge Volland properly refused to honor Pomeroy's peremptory challenge. We further hold that Pomeroy is estopped from asserting that he received ineffective assistance of counsel during the litigation of his first petition for post-conviction relief because he knowingly waived his right to counsel and chose to represent himself. Finally, we hold that Pomeroy is not entitled to raise his remaining claims. Many of these claims are based on errors that allegedly occurred during the litigation of his underlying criminal case. These claims were forfeited because Pomeroy pleaded no contest to the criminal charge. The remainder of Pomeroy's claims are based on errors that allegedly occurred during the litigation of his first petition for post-conviction relief. Those claims were forfeited because Pomer-oy filed an appeal of the superior court's dismissal of that first petition, but then Pom-eroy voluntarily dismissed that appeal. Pomeroy's peremptory challenge of Judge Volland After Pomeroy's second petition for post-conviction relief was assigned to Judge Volland, Pomeroy filed a challenge to Judge Volland under Alaska Civil Rule 42(c)(1). Civil Rule 42(c)(1) states: "In [any] action pending in the Superior or District Courts, each side is entitled as a matter of right to a change of one judge...." The rule further specifies that a party's right to peremptorily challenge a judge is waived if the party knowingly participates before that judge in "[alny judicial proceeding which concerns the merits of the action and involves the consideration of evidence or of affidavits." Judge Volland was the judge who decided Pomeroy's first petition for post-conviction relief. When Pomeroy challenged Judge Volland in the second post-conviction relief proceeding, Judge Volland denied the challenge on the basis of our decision in Plyler v. State. In other words, Judge Volland ruled that Pomeroy was not entitled to challenge him because he was the judge who presided over Pomeroy's prior post-conviction relief litigation (litigation involving the same underlying criminal conviction). In Plyler, this court held that a defendant pursuing a petition for post-conviction relief is not entitled to peremptorily challenge the judge who presided over the defendant's underlying criminal case. Pomeroy notes that his case presents a different situation: although Judge Volland was the judge who presided over Pomeroy's first petition for post-conviction relief, Judge Volland was not the judge who presided over Pomeroy's underlying eriminal case. Thus, strictly speaking, our decision in Plyler does not govern Pomeroy's situation. The issue here is whether a second post-conviction relief application, challenging the same underlying criminal conviction but filed as a separate civil case, should be deemed a new "action" for purposes of Civil Rule 42(c)(1). Or, phrased more case-specifically, the issue is whether Pomeroy waived his right to challenge Judge Volland in the see-ond post-conviction relief litigation when Pomeroy failed to challenge Judge Volland in the first post-conviction relief litigation. The Alaska Supreme Court and this court have consistently held that a party's exercise of a peremptory challenge under Civil Rule 42, or a party's waiver of the right of peremptory challenge under Civil Rule 42, apply not only to the proceeding directly affected by the challenge or the waiver, but also to any other proceeding that is "ancillary to and a continuation of the underlying . action." For example, in Gieffels v. State, the defendant peremptorily disqualified the judge assigned to his felony case. The case was assigned to another judge, and the indict, ment was later dismissed because of insufficient evidence and prosecutorial error. The State then secured a second indictment on an identical charge. The defendant's arraignment on this new indictment was assigned to the original judge (the one who had been peremptorily challenged). At this arraignment, the defendant noted his earlier peremptory challenge and demanded that the arraignment be assigned to a different judge. The judge refused to honor the defendant's earlier peremptory challenge and, over objection, presided over the defendant's arraignment on the second indictment. The supreme court held that because the judge had been preempted in the prior proceeding, he was "automatically disqualified from presiding" at the subsequent proceeding "in which the same charges [were] at issue." In McKinnon v. State, the supreme court held that a probation revocation proceeding and a criminal prosecution stemming from one allegation of criminal conduct were part of the same action for the purpose of peremptory challenges. And in Webber v. Webber, this court similarly held that a defendant in a criminal contempt proceeding was not entitled to peremptorily challenge the trial court judge who presided over the civil matter out of which the contempt charge arose because the contempt proceeding was a continuation of the civil matter. The most significant support for Pomeroy's position is found in Staso v. State, Department of Tramsportation' In Staso, the Alaska Supreme Court decided that each side gets a new peremptory challenge under Civil Rule 42(c) when a civil suit is dismissed on procedural grounds and then refiled, even when the second complaint is identical to the complaint previously dismissed. The supreme court noted the uncertainty that could be caused if a party's right to a new peremptory challenge hinged on whether the new complaint alleged significantly different counts or theories. The Staso decision could be read to establish an invariable rule that parties are entitled to a new peremptory challenge under Civil Rule 42(c) whenever a civil action is refiled and is given a new court number. But we have not interpreted Staoso in such a broad fashion. In Plyler, this court discussed the Staso decision, and we rejected the notion that, under Staso, parties invariably are entitled to a new peremptory challenge every time a related court filing is given a different file number: We do not interpret Staso as creating a hard-and-fast rule for all situations in which related proceedings are given separate court numbers. Rather, we read Sta-so in a more limited fashion: . in the particular context of refiled civil actions, the public policy favoring continuity in judicial decision-making was outweighed by the policy of giving litigants clear advance notice of their rights. We followed the reasoning of the earlier cases on this subject, and we applied the principle that collateral proceedings are not considered to be "new" actions for purposes of the peremptory challenge rule. Specifically, in Plyler, we held that the parties to post-conviction relief proceedings are not entitled to peremptorily challenge the judge who presided over the underlying criminal action.' More recently, in State v. Galbraith, we adhered to this principle again. Galbraith involved an indictment that was dismissed after the judge found the defendant to be incompetent to stand trial. The State later refiled the same charges (with a new case number) after the State concluded that the defendant had regained his competency. When this new indictment was assigned to the judge who had presided over the initial proceedings (and who had found the defendant to be incompetent), the State attempted to exercise a peremptory challenge against this judge. We acknowledged that Staso might be read to support the State's position, but we again adhered to the reasoning we employed in Plyler. We held that the renewed proceedings on the indictment were so significantly related to the earlier proceedings that the parties were not entitled to a new round of peremptory challenges. Thus, because the State did not challenge the judge during the initial proceedings, the State was prohibited from challenging the judge during the renewed proceedings on the same charges. We now hold that this same reasoning applies to Pomeroy's case. As we recognized in Plyler, when a defendant attacks a criminal conviction by filing a petition for post-conviction relief, the post-conviction re lief proceeding-although a separate civil action-is collateral to the original criminal case. We held in Plyler that the original criminal case and the post-conviction relief case are to be treated as a single action for purposes of the peremptory challenge rule. We now conclude that when a defendant files a second petition for post-conviction relief, attacking the same underlying criminal conviction, that second petition should also be considered to be the same action as the original criminal case and the prior post-conviction relief litigation. In Pomeroy's case, he allowed his first post-conviction relief application to be litigated in front of Judge Volland. Pomeroy did not challenge Judge Volland, and Judge Vol-land was the one who eventually entered the final judgment in that litigation. Pomeroy thus waived his right to peremptorily challenge Judge Volland in this second post-conviction litigation attacking the same underlying conviction. Pomeroy's claim that he received imeffec-tive assistance of counsel in his first post-conviction relief litigation One of Pomeroy's claims in his second petition for post-conviction relief is that he received ineffective assistance of counsel during the litigation of his first petition for post-conviction relief In order to explain why the superior court correctly rejected this claim, we must recount the procedural history of Pomeroy's first petition for post-conviction relief. Pomeroy's first petition for post-conviction relief was dismissed by the superior court in early 2007, and Pomeroy filed an appeal of this dismissal: Pomeroy v. State, Court of Appeals File No. A-9965. While Pomeroy's appeal was pending, this court became aware that (1) Pomeroy had litigated that first petition for post-conviction relief without the assistance of counsel, and (2) the superior court never asked Pom-eroy whether he was willing to waive his right to counsel. We therefore remanded Pomeroy's case to the superior court, directing the superior court to offer Pomeroy the opportunity to ask for counsel and, with the assistance of counsel, the opportunity to completely relitigate his petition for post-conviction relief, In the superior court, Pomeroy initially asked for counsel, and Judge Volland appointed the Office of Public Advocacy to represent him. But on June 25, 2007, Pomer-oy filed a pro se pleading in this court in which he expressed his dissatisfaction with his court-appointed attorney. In his motion to this court, Pomeroy stated that he did not wish to relitigate his post-conviction relief claims in the superior court. Instead, Pom-eroy asked this court to allow him to proceed directly to the appeal of Judge Volland's dismissal of those claims. In addition, Pom-eroy asked this court to let him prosecute the appeal pro se. In response to Pomeroy's pleading, this court again remanded Pomeroy's case to the superior court to make sure that Pomeroy was indeed willing to waive his right to counsel. Pursuant to our second remand order, the superior court held a hearing to ascertain Pomeroy's wishes. After the superior court expressly advised Pomeroy of the benefits of counsel and the dangers of self-representation, Pomeroy reiterated that he wished to waive his right to counsel, that he wished to forego any relitigation of his post-conviction relief claims in the superior court, and that he wished to proceed directly to his appeal of the superior court's judgment. (As we explain later in this opinion, this appeal was later dismissed at Pomeroy's request.) To summarize this procedural history: The superior court committed error by allowing Pomeroy to litigate his petition for post-conviction relief pro se without first obtaining Pomeroy's knowing waiver of his right to counsel. But when this error was brought to light, Pomeroy was given two opportunities to assert his right to counsel and to completely relitigate his post-conviction relief claims, this time with the assistance of counsel. Pomeroy declined these opportunities and, instead, he chose to let the results of the superior court litigation stand. We acknowledge that when Pomeroy waived his right to counsel during the remand proceedings in the superior court, he informed Judge Volland that his waiver was prospective only: Mr. Pomeroy: I would like to make a statement that I did not-I want to make sure that [my waiver is] from this date forward-for the [purposes of] appeal . that I'm waiving my rights to [the assistance of] counsel. I'm not [saying] that I waive my rights during the . process of the [post-conviction relief] application. [In] other words, when I filed the application, when I asked for an attorney it, was denied, relitigated. [ste] Now we're moving forward, [but] I'm not waiving my right to assistance of counsel during the litigation of the [post-conviction relief] application; put it that way. . I want to make sure the Court understands this. The Court: I understood that . to be the case. « Mr. Pomeroy: Yeah, okay.... I just want to make sure that . I'm not waiving-going back and waiving some [deprivation of] right that [already] happened, you know. Based on this colloquy between Pomeroy and Judge Volland, it appears that Pomeroy may have wanted to preserve his right to argue on appeal-that is, in the appeal of Judge Volland's decision to dismiss Pomer-oy's first petition for post-conviction relief-that he had been wrongfully deprived of the assistance of counsel when he litigated that first petition. But although Pomeroy may have wished to preserve this point on appeal, he also (at the same hearing) voluntarily relinquished the opportunity to relitigate his first post-convietion relief petition with the assistance of counsel. In other words, Pomeroy knowingly declined the only relief that he would have been entitled to, had he prevailed on this claim of error. Moreover, as we explain later in this opinion, Pomeroy subsequently chose to voluntarily withdraw his appeal of the superior court's dismissal of his first petition for post-conviction relief. In other words, even though Pomeroy may have preserved this issue for appeal when he appeared in front of Judge Volland on August 3, 2007, Pomeroy ultimately decided not to pursue this appellate claim (or any others); instead, he voluntarily dismissed his appeal in early 2009. By these actions, Pomeroy retrospectively ratified his pro se litigation of his first petition for post-conviction relief. And because Pomeroy knowingly waived the assistance of counsel to help him litigate that first post-conviction relief application, he is now barred from arguing that his self-advocacy in that litigation was ineffective. When a defendant knowingly waives his right to counsel and chooses to represent himself, the defendant may not later obtain relief on the basis that his self-representation was incompetent when judged against the standard of practice expected of criminal defense attorneys. For these reasons, the superior court correctly rejected Pomeroy's claim that he received ineffective assistance of counsel during the litigation of his first petition for post-conviction relief, Pomeroy's remaining claims Many of Pomeroy's remaining claims involve errors that allegedly occurred during the litigation of his underlying criminal case-i.e., errors that occurred before he pleaded no contest. A defendant who pleads guilty or no contest waives all non-jurisdictional errors that may have been committed in the lower court proceedings before the entry of the defendant's plea Thus, the superior court correctly rejected all of these claims of error. Pomeroy also raises many other claims that involve errors allegedly committed during the litigation of his first petition for post-conviction relief. All of these claims could have been raised in Pomeroy's appeal of the superior court's dismissal of his first petition. However, Pomeroy voluntarily dismissed that appeal while it was in the briefing stage. Here are the details of that procedural history: After the superior court dismissed Pomer-oy's first petition for post-conviction relief, he filed a pro se appeal of the superior court's decision. As we have already explained, we realized while Pomeroy's appeal was pending that he had never validly waived his right to counsel during the first post-conviction relief litigation, so we gave Pomeroy the opportunity to relitigate that first petition with the assistance of counsel. Pomeroy ultimately decided to waive the assistance of counsel, to waive relitigation of his post-conviction relief claims, and to simply proceed with his appeal. But in early 2009, Pomeroy filed a motion asking this court to stay all further proceedings in his appeal while he Htigated a second petition for post-conviction relief. In his motion, Pomeroy indicated that he intended to argue in his second petition that he was denied his right to counsel during the litigation of his first petition. This court denied Pomeroy's motion to stay the appeal. (The denial of Pomeroy's motion to stay the appeal did not prevent Pomeroy from filing his proposed second petition for post-conviction relief; it simply meant that the two cases would be litigated simultaneously.) Six weeks later, on March 28, 2009, with his reply brief still pending, Pomeroy filed a motion to withdraw his appeal. In this motion, Pomeroy informed this court that he had, indeed, filed a second petition for post-conviction relief, and he asserted that "it [was] in the best interest of justice, and [in the interest of his] family{,] that appellant withdraw [this appeal]. In accordance with Pomeroy's request, this court dismissed his appeal. By withdrawing his appeal, Pomeroy relinquished his right to challenge any errors that the superior court might have committed during the litigation leading up to the dismissal of his first petition for post-conviction relief. As stated in Alaska Criminal Rule 35.1(b), the remedy of post-conviction relief "is not a substitute for . any remedy incident to the proceedings in the trial court," nor is it a substitute for "direct review of the sentence or conviction." In other words, a defendant can not use post-conviction relief as a method for raising claims that could have been raised on direct appeal. This principle most often comes into play when a defendant attempts to raise claims in post-conviction relief litigation that could have been raised in the defendant's direct appeal of their criminal conviction. As stated in AS 12.72.020(2)(2), a claim can not be raised in post-conviction relief litigation "[if] the claim was, or could have been ., raised in a direct appeal {of] . the conviction." The same principle applies to Pomeroy's litigation. Pomeroy attempted to use a see-ond petition for post-conviction relief as a means of challenging errors that allegedly occurred during the litigation of his first petition for post-conviction relief But the proper method for challenging those errors was to appeal the superior court's judgment in the first post-conviction relief case. Pomeroy filed an appeal, but then he voluntarily withdrew it, Pomeroy's voluntary withdrawal of his appeal did not give him the right to use a second petition for post-convietion relief as a substitute for his abandoned appeal. Moreover, AS 12.72.020(a)(6) bars defendants from seeking post-conviction relief if they have filed a previous petition for post-conviction relief. For these reasons, the superior court correctly rejected all of these claims when they were raised in Pomeroy's second petition for post-conviction relief. (We have recognized one exception to the rule that all claims of error arising during the litigation of a first petition for post-conviction relief must be raised on direct appeal of the judgment entered in that post-conviction relief action. The exception is that a defendant may file a second post-conviction relief petition to pursue a claim that the defendant's attorney incompetently litigated the first petition for post-conviction relief This exception exists because, under Alaska law, a claim of ineffective assistance of counsel ordinarily can not be raised on direct appeal. But, as we have already explained, Pomeroy waived his right to reliti-gate his first petition for post-conviction relief with the assistance of counsel; instead, he chose to ratify his pro se litigation of that first petition for post-conviction relief. Under these circumstances, Pomeroy is not allowed to argue that he represented himself ineffectively.) Conclusion The judgment of the superior court is AFFIRMED. . Alaska R. Civ. P. 42(c)(4)@). . 10 P.3d 1173 (Alaska App.2000). . Id. at 1176. . Staso v. State, Dep't. of Transp., 895 P.2d 988, 991 (Alaska 1995) (quoting Webber v. Webber, 706 P.2d 329, 330 (Alaska App.1985)). . 552 P.2d 661 (Alaska 1976), disapproved of on other grounds by Miller v. State, 617 P.2d 516 (Alaska 1980). . Id. at 663-64. . Id. . Id. at 665. . 526 P.2d 18 (Alaska 1974). . Id. at 25. . 706 P.2d 329. . Id. at 330. . 895 P.2d 988. . Id. at 992. . Staso, 895 P.2d at 990 n. 4. . Plyler, 10 P.3d at 1176. . Id. . 199 P.3d 1216 (Alaska App.2009). . Id. at 1217. . Id. at 1217-18. . Id. at 1219. . See Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (holding that the Alaska Constitution guarantees the assistance of counsel to defendants pursuing their first petition for post-conviction relief). . Corrected Order at 2, Pomeroy v. State, No. A-9415 (April 13, 2007). . Order at 1, Pomeroy v. State, No. A-9965 (July 11, 2007). . Id. at 2. . Id. at 4-5. . Report to Appellate Court at 1-2, Pomeroy v. State, No. A-9965 (Aug. 13, 2007). . See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) ("A defendant who exercises his right to appear pro se cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.' ") (quoting Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975)). Accord State v. Russell, 175 Ariz. 529, 858 P.2d 674, 679-80 (Ariz.App.1993); State v. Richards, 456 N.W.2d 260, 263 (Minn.1990). . Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974); Tyler v. State, 24 P.3d 1260, 1262 (Alaska App.2001); Bobby v. State, 950 P.2d 135, 139 (Alaska App.1997); Miles v. State, 825 P.2d 904, 905 (Alaska App.1992). . Order at 1-2, Pomeroy v. State, No. A-9965 (Feb. 3, 2009). . Id. at 2. . Affidavit of Counsel [sic] at 1-2, Pomeroy v. State, No. A-9965 (March 23, 2009). . Order at 1, Pomeroy v. State, No. A-9965 (April 3, 2009). . Grinols v. State, 10 P.3d 600 (Alaska App.2000), aff'd, 74 P.3d 889 (Alaska 2003). . Sharp v. State, 837 P.2d 718, 722 (Alaska App.1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984).

6988333

Darren SHAY, Appellant, v. STATE of Alaska, Appellee

Shay v. State

2011-07-01

No. A-10380

902

906

258 P.3d 902

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Darren SHAY, Appellant, v. STATE of Alaska, Appellee.

Darren SHAY, Appellant, v. STATE of Alaska, Appellee. No. A-10380. Court of Appeals of Alaska. July 1, 2011. Margi Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

1993

11980

OPINION BOLGER, Judge. The police found Darren Shay hitchhiking about a mile from the site of a car crash following a high-speed chase. Shay gave vague statements when questioned about his whereabouts at the time of the crash, and the police eventually arrested him and gave him a Miranda warning. The trial court denied Shay's motion to suppress his pre-Miranda statements to police. We agree with the trial court that Shay was initially subjected to an investigatory stop that did not involve eusto-dial interrogation, and therefore his pre-ar-rest statements were admissible. Background Alaska State Trooper Levi Duell pulled a green sedan over around Mile 108 of the Sterling Highway. Duell began to approach the car on foot, but the car then sped off. The trooper initially followed the car, but then discontinued the chase when he reached an unsafe speed. A short time later, the trooper observed the green sedan abandoned in the ditch at Mile 107. Duell and Soldotna Police Officer Jared Meyer searched the woods around the abandoned car, assuming that the driver had escaped on foot. After a fruitless search, Meyer headed north back toward Soldotna and came across Shay standing on the side of the road, about one mile north of where the green sedan went into the ditch Meyer stopped to talk to Shay to see if he knew anything about the chase or the abandoned car. When talking to Shay, Meyer noticed that Shay was dirty and wet and looked like he had been outside for a while. Meyer contacted Duell, and asked the dispatcher to run Shay's name through the computer. The dispatcher told Meyer that Shay was on felony probation for driving under the influence. Shay admitted that he was on probation and cooperated when Meyer asked him to provide a breath sample. The portable breath test indicated that Shay had consumed alcohol. Meyer asked Shay where he had come from, and Shay replied that he had been at a friend's house nearby. The entire conversation, though not recorded, was apparently cordial. Shay was never handcuffed or physically restrained in any way, and he was cooperative throughout. About five minutes after Meyer first contacted Shay, Duell arrived on the scene. This portion of the investigation was recorded. Duell performed a brief pat-down for weapons, and Meyer asked Shay to take a seat on the bumper of his police vehicle. Duell then asked Shay where he was coming from, and Shay replied that he had been at his friend Mike Whitehousen's place nearby. Shay did not know Whitehousen's phone number or the name of the road on which he lived. Dispatch reported that the computer database revealed nobody by that name. Shay then explained that he was out burning brush with Whitehousen. He did not know the names of any of the other people who were burning brush. He said that he left when they started drinking because of his probation conditions. Shay asked what he had done to draw this kind of police attention, and Duell explained that they were looking for someone who fled from police following a car chase. Shay responded that he didn't drive. At this point, Duell put Shay in the back seat of his police vehicle. After a brief discussion about the name of Shay's probation officer, Shay asked Duell if he was under arrest. The trooper responded that he was not under arrest, but he was in custody, and then the trooper recited the Miranda warning. Duell then asked Shay to direct him to the burn site in order to corroborate Shay's story. But when they got to the location Shay described, there was no sign of a fire. Further investigation revealed that the green sedan was owned by Shay's coworker and that another coworker had asked to borrow it the day before. Later, Shay's roommate contacted Duell and told him that she had been in the car and that Shay was driving the car when they fled from the police. Shay was charged with failing to stop for a peace officer and two counts of third-degree assault for recklessly placing Shay's roommate in fear of imminent physical injury and for causing her actual physical injury. Shay filed a motion to suppress his statements to the police, arguing that the police subjected him to a custodial interrogation but did not advise him of his Miranda rights Superior Court Judge Carl Bauman denied Shay's motion to suppress, ruling that the custodial interrogation did not begin until Shay was placed in the police vehicle. Shay was convicted after a jury trial, and he now appeals. Discussion During a custodial interrogation, a suspect must be warned "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." The defendant may then waive these rights and speak with the police. If a suspect is subjected to custodial interrogation without first receiving these warnings, his statements may not be used against him. We examine two issues to determine whether an interrogation was custodial: "(1) the cireumstances surrounding the interrogation; and (2) given the totality of those cireumstances, whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. We accept the trial court's factual findings regarding the cireumstances of the interrogation unless they are clearly erroneous. Using the trial court's factual findings, we independently decide the question of whether the suspect was in custody. Shay argues that he could have reasonably assumed that Officer Meyer had placed him under arrest for a probation violation. He argues that "[dlispatch reported that Shay was on felony probation for DUI, and his probation was conditioned upon not drinking aleohol." Shay did not make this argument in his motion to suppress, so the superior court did not make any findings on this issue. In the absence of lower court findings on disputed issues, we view the record in the Tight most favorable to the lower court's ruling. Here, the record does not support Shay's assertion. Meyer did testify that dispatch informed him that Shay was on probation. But the officer only assumed from this information that Shay had a probation condition requiring him not to drink aleohol to excess. He asked Shay if he had been drinking more than he was allowed to, and then asked him to take a portable breath test. But Meyer did not take any further action on this issue; in particular, he did not restrain Shay in any way. Shay also argues that he was in custody when he made his statement to Trooper Duell, Duell began with a brief pat-down for weapons. Duell then began asking Shay questions about why he was walking alone on the side of the road in a rural area in early winter, why he was dirty and with whom he had been socializing. Shay's answers were vague and noncommittal. The entire length of Shay's pre-Miranda contact with Duell was about thirteen minutes. Shay argues that Meyer placed him in custody when the officer told Shay to "have a seat" on the bumper (while Duell was asking questions), thereby directing Shay to a physical location. He argues that a reasonable person would not have felt free to leave after receiving this direction. The superior court assumed that the restrictions on Shay's movement could constitute a seizure under the Fourth Amendment-a seizure that had to be supported by reasonable suspicion. But this observation does not establish that Shay was in custody for Miranda purposes. In Berkemer v. McCarty, the United States Supreme Court held that a person who is subjected to a traffic stop is not necessarily entitled to Miranda warnings, even if they do not reasonably believe that they are free to leave. This court has extended the Berkemer rationale to other types of investigatory stops. Investigatory stops are generally temporary and brief, and they generally take place in public, where the suspect is not subjected to the coercive pressures and isolation of a custodial interrogation. A suspect is not entitled to a Miranda warning during an investigatory stop, unless they are "detained under cireumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination. So, in Blake v. State, we held that Miranda warnings were not required when a trooper stopped a suspect to question him about shooting a bear. In McCollum v. State, we held that no Mirando warnings were required when a trooper stopped a suspect in a parking lot and required him to sit in a patrol car while the trooper questioned him about damaging shopping carts. And in McNeill v. State, we held that warnings were not required when a trooper came into a suspect's home to question him about a domestic disturbance. Shay's contact with the police appears to be a routine investigative stop like these reported decisions. Judge Bauman found that Duell had reasonable suspicion to justify questioning Shay-he was dirty and wet and hitchhiking in a rural area just a mile from the scene of a high-speed chase. And Trooper Duell's questioning of Shay took place on the side of a public road, with only one other officer present, under cireumstances that were far different than the coercive atmosphere of a police station. Shay also notes that when Duell eventually placed him in his vehicle, Duell instructed the dispatcher to notify Shay's probation officer that "he was holding Shay." This conversation allegedly occurred immediately before Duell gave Shay his Mirando warnings. Again, the record does not support Shay's argument. Duell did ask dispatch to contact Shay's probation officer, but he did not ask the dispatcher to tell the probation officer that he was holding Shay. Shortly thereafter, Duell told Shay that he was not under arrest. Thus the record suggests that Duell was not contacting Shay's probation officer to report that he kad arrested Shay for a probation violation; he was contacting the officer to ask whether he should arrest him. In any event, all of the statements in dispute were made before Shay was placed in the patrol car. During this time, the cireum-stances of Shay's detention were not more coercive than the investigative stops in Blake, MeCollum, and MeNeill. Duell never asked accusatory questions, never confronted Shay with incriminating evidence, and never pressured him in any way. He simply tried to clarify Shay's alibi. When the trooper was satisfied that Shay's alibi was likely false, he put him in the police vehicle and gave him a Miranda warning. We conclude that these cireumstances did not constitute custodial interrogation. Conclusion We AFFIRM the trial court judgment. . AS 28.35.182(a)(1), (3). . AS 11.41.220(a)(1)(A), (B). . See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Id. . Id. . Id. . State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002). . Id. ar 1153. . Id. . Id. . See generally Majaev v. State, 223 P.3d 629, 632 (Alaska 2010) (indicating that, if a seizure occurs that triggers constitutional protections, 'the next inquiry is whether the investigatory stop falls within the 'reasonable suspicion exception to the probable cause requirement.'" (quoting Waring v. State, 670 P.2d 357, 363 (Alaska 1983))). . 468 U.S, 420, 436-37, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). . Blake v. State, 763 P.2d 511, 514 (Alaska App.1988). . Id. at 515. . Id. at 512, 514-15. . 808 P.2d 268, 269-70 (Alaska App.1991). . 984 P.2d 5, 6-7 (Alaska App.1999).

6988170

Annie SHINAULT, Appellant, v. STATE of Alaska, Appellee

Shinault v. State

2011-05-27

No. A-10358

848

851

258 P.3d 848

258

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

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

Annie SHINAULT, Appellant, v. STATE of Alaska, Appellee.

Annie SHINAULT, Appellant, v. STATE of Alaska, Appellee. No. A-10358. Court of Appeals of Alaska. May 27, 2011. Janella K. Combs, Johnson & Combs, P.C., Kodiak, for the Appellant. Ben Hofmeister, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

1910

12142

OPINION BOLGER, Judge. Annie Shinault is challenging the sentence she received for her participation with her co-defendants Douglas McClain and Brenda Cleveland in the torture and abuse of two women. Background McClain became convinced that a prostitute named M.J. had stolen crack, a pistol, a cell phone, and car keys from him when she came to his trailer to perform sexual services. He also believed that M.J. then urged her friends to rob him at gunpoint, stealing approximately $8,000 from him. MeClain's friend and co-defendant, Annie Shinault, picked up M.J. off the streets a few days later and took her to MeClain's trailer. Over the following three days, M.J. was beaten, tortured, and sexually abused by McClain, Shinault, and a third co-defendant, Cleveland. Another woman named V.B. came by to help clean up MeClain's trailer in exchange for drugs while M.J. was there. V.B. stole a crack pipe and some rolls of quarters from McClain. Shinault, Cleveland, and MeClain then subjected V.B. to similar beatings and abuse. Shinault was convicted of several crimes against M.J., including kidnapping, first-degree sexual assault, fourth-degree assault, and harassment. She was also convicted of misconduct involving weapons (for being a felon in possession of a concealable firearm) and fourth-degree assault committed against V.B. Superior Court Judge Patrick J. McKay imposed a composite sentence of fifty-one years and 270 days' imprisonment. Shinault had at least two prior felony convictions, so the presumptive range for her first-degree sexual assault conviction was forty to sixty years' imprisonment. The judge imposed a forty-year sentence on this count, the minimum sentence within the presumptive range. Discussion Before the sentencing hearing, Shi-nault submitted a request for Judge McKay to find a mitigating factor, based on AS 12.55.155(d)(2). This subsection allows a sentence below the presumptive range if "the defendant, although an accomplice, played only a minor role in the commission of the offense." The judge denied Shinault's request, and she now appeals this ruling. We must review Judge McKay's factual findings for clear error, but we independently determine whether, given these findings, the evidence establishes this mitigating factor. Mitigating factor (d)(2) is not intended to undermine the law on complicity. A defendant is not entitled to a mitigated sentence merely because they act as an accomplice. In order to rely on this factor, the sentencing judge must be clearly convinced that the defendant played only a minor role in the offense under consideration. In this case, Shinault brought Cleveland and M.J. to MecClain's trailer, where M.J. was beaten and tortured. The sexual assault conviction was based on Shingult's conduct after M.J. was forced to strip off her clothes, whipped with a belt, and taken to a back bedroom. Then Shinault said to Cleveland, "I want to see you fuck her with something." In response, Cleveland put on a leather glove, put some Vaseline on it, and shoved her hand into M.J.'s anus, hard enough to make her ery. Then Cleveland made M.J. lick the glove. Judge McKay found that Shinault had been an active participant in M.J.'s abuse, beginning with her delivery of MJ. to McClain for retaliation. The judge found that M.J. had been tortured, and that Shi-nault participated actively by burning her with a crack pipe and putting a sock in her mouth. He found that Shinault had not merely encouraged Cleveland, but rather that Shinault had almost directed Cleveland to sexually assault M.J. He found that Cleveland's decision to shove the soiled glove in M.J.'s mouth was horrific, and that Shinault's amusement during this assault was disgusting. We conclude that Judge McKay's findings are reasonably supported by the trial testimony. We likewise agree that, under these cireumstances, Shinault failed to establish that she played only a minor role in this offense. Shinault also argues that Judge McKay should have sua sponte referred her case to the three-judge sentencing panel for consideration of a sentence below the presumptive range. Under AS 12.55.165, a sentencing judge is to refer a defendant's sentencing to the three-judge panel if the judge finds "that manifest injustice would result from . imposition of a sentence within the presumptive range, [even after the sentence is] adjusted for [proven] aggravating or mitigating factors." In other words, this statute directs a sentencing judge to refer a defendant's case to the three-judge panel if, given the applicable presumptive range of sentences and given the amount of adjustment that the judge is authorized to make for aggravating and mitigating factors, the judge concludes that any sentence within his or her authority would be manifestly unjust under the circumstances of the defendant's case. Because Shinault was a third felony offender for presumptive sentencing purposes, she faced a presumptive range of forty to sixty years' imprisonment for the crime of first-degree sexual assault. Shinault did not prove any mitigating factors, so the forty-year floor of the presumptive range was effectively the minimum sentence that Judge McKay could impose for the sexual assault. Shinault was separately convicted of kidnapping, an unclassified felony with a mandatory minimum sentence of five years' imprisonment. Under AS 12.55.127(c)(2)(B), Judge McKay was obliged to make at least five years of Shinault's kidnapping sentence consecutive to her sexual assault sentence. Thus, Judge McKay was required to sentence Shinault to a minimum of forty-five years' imprisonment.8 Shinault contends that Judge McKay committed plain error when, even in the absence of a defense request, he failed to see that any sentence within his authority would be manifestly unjust and that Shinault's case should therefore be referred to the three-judge panel. But even though Shinault describes this alleged error as Judge McKay's failure to refer her case to the three-judge panel, as we explain below, Shinault is actually arguing that her sentence is excessive. Judge McKay's failure to refer Shinault's case to the three-judge sentencing panel would constitute plain error only if all competent judges would conclude that it was manifestly unjust to sentence Shinault to even the most lenient term of imprisonment available to Judge McKay. In other words, if we were to grant relief to Shinault (ie., if we were to order the transfer of her case to the three-judge panel), we would effectively be declaring that any sentence of forty-five years or more was "manifestly unjust," given the circumstances of her case. We can perceive no principled distinction between (1) holding that any sentence of forty-five years or more is "manifestly unjust" and (2) holding that any sentence of forty-five years or more is "clearly mistaken" under the sentencing criteria codified in AS 12.55.005. Indeed, in Haorapat v. State, this court explained that these two concepts are one and the same: When a defendant seeks referral to the three-judge panel on the theory that any sentence within the range allowed to a single sentencing judge under the pre sumptive sentencing law would still be manifestly too severe, the sentencing judge must undertake an analysis of the lower end of the sentencing range allowed by the presumptive sentencing law-either the presumptive term itself (if no statutory mitigators are proved), or the utmost adjustment that is possible under AS 12.55.155(a) based on statutory mitigators. The question to be answered is whether this lowest allowed sentence would still be clearly mistaken under the sentencing criteria first announced by the supreme court in State v. Chaney [477 P.2d 441 (1970)] and now codified in AS 12.55.005. Thus, the question, "If Shinault received a sentence of forty-five years or more, would that sentence be manifestly unjust?" is legally equivalent to the question, "If Shinault received a sentence of forty-five years or more, would that sentence be clearly mistaken under Alaska's sentencing criteria?", This court has no jurisdiction to answer this latter question. A sentence of forty-five years to serve lies within the forty- to sixty-year presumptive range of sentences for Shinault's sexual assault conviction. Alaska Statute 12.55.120(e) declares, "A sentence within an applicable presumptive range set out in AS 12.55.125 . may not be appealed to the court of appeals under [AS 12.55.120] or AS 22.07.020 on the ground that the sentence is excessive." (Instead, the defendant only has the right to petition the Alaska Supreme Court for discretionary review of the sentence.) Thus, if Shinault had received this minimum forty-five-year sentence, and if she wished to argue that this sentence was excessive, this court would lack jurisdiction to adjudicate Shinault's claim. But Shinault's contention that Judge McKay should have referred her case to the three-judge sentencing panel rests on exactly the same underlying claim: the assertion that even a sentence of forty-five years (the least severe sentence available to Judge McKay) was clearly mistaken under the Cha-mey sentencing criteria. And because the underlying claim is the same, this court's jurisdiction to resolve that elaim-or, rather, our lack of jurisdiction to resolve that claim-is also the same. We have no jurisdiction to grant relief to Shinault-no authority to declare that Shi-nault's case should be referred to the three-judge panel on the ground that even a sentence of forty-five years to serve was clearly mistaken. We likewise have no authority to declare that such a sentence was not clearly mistaken (and that Judge McKay therefore committed no error when he failed to refer Shinault's case to the three-judge panel). Because this court lacks jurisdiction to resolve this issue, we conclude that Shinault's only avenue for seeking relief is to petition the Alaska Supreme Court to exercise its power of discretionary sentence review. Conclusion Accordingly, we REFER the appellant's excessive sentence claim to the Alaska Supreme Court pursuant to Alaska Appellate Rule 215(k). We AFFIRM the remaining aspects of the superior court's judgment and sentence. . AS 12.55.1250)(1)(E); AS 12.55.185(17). . AS 12.55.155(d)(2). . Michael v. State, 115 P.3d 517, 519-20 (Alaska 2005). . See AS 11.16.110 ("A person is legally accountable for the conduct of another constituting an offense if . with intent to promote or facilitate the commission of the offense, the person . aids or abets the other in planning or committing the offense."). . See Marzak v. State, 796 P.2d 1374, 1376 (Alaska App.1990) (rejecting this factor where defendant arranged to have a co-defendant kill an adverse witness); Hale v. State, 764 P.2d 313, 314, 316 (Alaska App.1988) (rejecting this factor where the defendant procured the weapon used in an armed robbery and planned the offense); Abdulbaqui v. State, 728 P.2d 1211, 1215 (Alaska App.1986) (rejecting this factor where the defendant acted as a lookout for a store robbery). . AS 12.55.155(d)(2), (D(1). . Harapat v. State, 174 P.3d 249, 253-54 (Alaska App.2007). . AS 11.41.300(c); AS 12.55.125(b). . See generally Simon v. State, 121 P.3d 815, 820 (Alaska App.2005) ("To be 'plain error', an error must be so obvious that any competent judge or attorney would have recognized it. If a claim of error is reasonably debatable-if reasonable judges could differ on what the law requires-then a claim of plain error fails." (footnote omitted)). . 174 P.3d 249. . Id. at 254 (footnote omitted). . See AS 22.07.020(b), which declares that this court has jurisdiction to hear appeals of felony sentences that exceed two years to serve "except as limited by AS 12.55.120."

10320991

F.T., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF FAMILY AND YOUTH SERVICES and B.T., Appellees. In re: R.T., A Minor Under the Age of 18 Years

F.T. v. State, Department of Health & Social Services, Division of Family & Youth Services

1996-09-06

No. S-7265

277

283

922 P.2d 277

922

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

F.T., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF FAMILY AND YOUTH SERVICES and B.T., Appellees. In re: R.T., A Minor Under the Age of 18 Years.

F.T., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF FAMILY AND YOUTH SERVICES and B.T., Appellees. In re: R.T., A Minor Under the Age of 18 Years. No. S-7265. Supreme Court of Alaska. Sept. 6, 1996. Kenneth C. Kirk, Anchorage, for Appellant. J. Stefan Otterson, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH and FABE, JJ.

3680

21580

OPINION FABE, Justice. I. INTRODUCTION The father of a minor child, R.T., challenges the superior court's decision that R.T. remain a child in need of aid (CIÑA) and the consequent extension of state custody for up to two years. We conclude that the trial court's decision was not clearly erroneous and should be affirmed in all respects. II. FACTS AND PROCEEDINGS A. Background F.T. and B.T. separated in February 1989. They had two children: a son, G.T., and a daughter, R.T. R.T. was born in November 1985 and was nine years old at the time of the most recent proceedings in the superior court. The children's mother, B.T., had custody of the children after she and F.T. separated. F.T. was not allowed to have unsupervised visits with the children because of substantiated allegations of child abuse. In May 1990 the Department of Health and Social Services (DHSS) filed a CINA petition for temporary placement of the children. Superior Court Judge John Reese found probable cause to believe that the children were in need of aid, that reasonable efforts were made to prevent their removal from the home, and that continued placement in the home would not be in their welfare. In February 1991 Judge Reese found that G.T. and R.T. were children in need of aid. F.T. appealed the child in need of aid adjudication of G.T. F.T. did not appeal the determination that R.T. was a child in need of aid. We concluded that there was no basis in the record to support a finding that G.T. was in need of aid under AS 47.10.010(a)(2)(A), and insufficient evidence to support a finding under AS 47.010(a)(2)(C). F.T. v. State, 862 P.2d 857, 862, 864 (Alaska 1993). We vacated the order committing G.T. to the custody of DHSS, and G.T. was subsequently returned to F.T. B. Proceedings before Judge Gonzalez In October 1993 DHSS filed a petition to terminate F.T.'s parental rights with respect to R.T. Superior Court Judge Rene J. Gonzalez held a termination trial in August 1994. Social worker Marge Karamolegos testified that she was assigned to R.T.'s case on July 20,1990 and that during the time she worked on the case there was no plan to reunite R.T. and F.T. Larry Overholser took over for Karamolegos in November 1992. He testified that there was no reunification plan. However, before the close of evidence, the State recalled Overholser, and he testified that a more complete review of the file revealed two reunification plans, dated December 1990 and June 1991. Judge Gonzalez found that R.T. was "exposed to domestic violence between her parents." He also found that R.T.'s foster parents had done an excellent job with her and that her foster parents wished to adopt her. As to reunification, Judge Gonzalez found that although there were apparently two reunification plans in DHSS's files, the evidence is clear that DHSS did not implement these plans because (1) their focus was on [R.T.] eventually being placed up for adoption, and (2) in practice, no plan to reunify [R.T.] with her father existed. DHSS exerted minimal effort in trying to work with [F.T.] in a treatment plan he could reasonably follow to eventually reunite with his daughter [R.T.]. He found that there had been continuing difficulties between social workers and F.T. and that F.T. "had encountered repeated difficulties in obtaining reasonable visitation with his daughter." Judge Gonzalez also noted that social workers had found F.T. difficult to work with because of his short temper and low frustration threshold. Judge Gonzalez noted that R.T. had been diagnosed by a psychologist as suffering from "major depression." Given that diagnosis, he noted that "it is troubling that DHSS did not have [R.T.] psychologically evaluated at a much earlier date so that she could have been receiving the professional attention she needs much earlier." Judge Gonzalez concluded that under Alaska Child in Need of Aid Rule 15(g), DHSS must make a reasonable effort to reunify a child in its custody with the child's family. He ruled that DHSS had not made reasonable efforts, opining: The two social workers who had the direct responsibility to assist [F.T.] with a reunification plan were not even sure that such a plan existed. While it is true that a search of the ease file eventually revealed documentation of a plan, the actual efforts made by DHSS to work with [F.T.] were not reasonable efforts to return [R.T.] to his home. Judge Gonzalez concluded that he could not make a finding that F.T.'s conduct, which originally caused R.T. to be a child in need of aid, was likely to continue given the absence of a reasonable reunification plan. He denied the State's petition to terminate F.T.'s parental rights. Judge Gonzalez also ordered DHSS to make reasonable efforts to reunite F.T. and R.T. and to work with F.T. on visitation and counseling. C. Proceedings before Judge Reese In March 1995 F.T. filed a petition alleging that the Division of Family and Youth Services (DFYS), a division of DHSS, was refusing him visitation in violation of Judge Gonzalez's order. DFYS opposed the petition and filed a petition to extend custody for another two years. The State's petition argued that F.T. should complete one-on-one parenting classes, attend counseling, and address anger management through individual or group counseling prior to visitation. The State also alleged that R.T.'s psychologist had diagnosed her as suffering from post-traumatic stress disorder and that visitation with F.T. would seriously interfere with her academic and daily functioning. F.T. opposed the State's motion to continue custody. Judge Reese conducted the trial on May 2, 1995. F.T. argued that the two-year extension was not in R.T.'s best interests and claimed that R.T. was no longer a child in need of aid. He proposed that a transitional schedule be put in place to return R.T. to his care. The court received testimony from two therapists, social worker Larry Overholser, F.T., and R.T.'s mother, B.T. This included extensive testimony as to R.T.'s unwillingness to accept the care of her father, past alleged incidents of child abuse and domestic violence, and F.T.'s behavior at supervised visits with R.T. F.T. also testified at length about what he would do if R.T. were returned to his care. He also provided testimony about how he felt G.T. was doing under his care. The court found that R.T. continued to be a child in need of aid on the basis that she was refusing to accept F.T.'s care. The court also noted in its oral order that R.T. could be found a child in need of aid based on the threat of physical harm if she were returned to F.T.'s care. The court added in its written order that F.T. had failed to complete treatment "necessary to address anger management and to be able to respond adequately to the needs of [R.T.]." The court concluded that continued CINA jurisdiction was in R.T.'s best interests. Judge Reese also ruled that the State could not leave the decision about commencing visitation up to R.T.'s therapist. He told the State that it would have to be ultimately responsible for such decisions. The court approved the State's treatmentsplan for F.T. R.T. was left in the care of the State. F.T. appeals. III. DISCUSSION A. Standard of Review The superior court's factual findings will not be overturned unless they were clearly erroneous. A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989). A finding is clearly erroneous when we are left with the defi nite and firm conviction after reviewing the entire record that a mistake has been made. In re J.L.F., 828 P.2d 166, 170 n. 12 (Alaska 1992), overruled on other grounds, In re S.A., 912 P.2d 1235,1241 (Alaska 1996). As to the interpretation of statutes and other issues of law, we apply our independent judgment. In re J.L.F., 828 P.2d at 168 n. 5. B. Did the Trial Court Correctly Conclude that R.T. Is a Child in Need of Aid? Both AS 47.10.083 and CIÑA Rule 19 require the court to determine that a child continues to be in need of aid before it grants an extension of custody. See AS 47.10.083; CIÑA Rule 19(f); see also 1990 Senate Journal 3431. In this case, the trial court correctly concluded that R.T. continued to be a child in need of aid. Under AS 47.10.010(a)(2)(A) a child can be found to be a child in need of aid as a result of the child being habitually absent from home or refusing to accept available care, or having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment.... Judge Reese found that R.T. was "refusing care available by her father apparently in a very loud manner," and this formed the primary basis for his finding that R.T. was a child in need of aid. The State, B.T., and the Guardian Ad Litem all agree that it was correct for the trial court to adjudge R.T. a child in need of aid on this basis. F.T. argues that R.T. has not had the opportunity to actually accept or reject his care. The superior court had before it a great deal of evidence concerning R.T.'s refusal to accept F.T.'s care. This evidence came primarily from the testimony of therapists who examined or worked with R.T. Their opinions related the substance of R.T.'s refusal to accept care from their father. As Dr. Senzig testified, it "seemfed] highly unlikely" that R.T. "would accept [F.T.] as her full-time caregiver" at the time of trial. They also discussed R.T.'s reasons for refusal and their judgment that R.T. was basing her concerns on actual events. For example, the court had the following exchange with Dr. Senzig: Q You said that [R.T.] can give you accurate and vivid detail about the reasons why she doesn't want to visit. What are those reasons? A She talks about watching her parents engaged in arguments and fights, and trying to shut out the noise of the fights by covering her ears and not being able to do that, and saying that after hearing fights like that, she has — she can't get the angry words and voices out of her head, and they keep going on and on and on. She tries to distract herself by engaging in various play activities and still can't get the words out of her head. Q Anything else? A She describes a visit at DFYS where her father was, as she puts it, yelling and it being very scary, and she's trying to shrink out of the way, and hoping that there wouldn't be a physical fight like she had seen [F.T.] and [B.T.] do in the past. She talked once about sitting somewhere between her parents and having them argue over her, and scrunching down, and talking about how it feels to have two grownups yelling over your head. And says, you know, I feel like getting up and standing in front of them and screaming, you're acting like children, stop it, but I don't do that because that would be rude and that would be disrespectful. Q Anything — any other things that happened at the visits that were seen by her as particularly stressful? A She described once that Mr. Overholser had to ask her father to leave because he was yelling so much, and stated that she was glad because she's tired of hearing all that yelling. She described her father asking her, as she puts it, dumb questions. And asking her the same question over and over, and has com- merited he doesn't — he doesn't listen to what I say. B.T. also testified. She had recently taken R.T. to lunch and claimed that when she mentioned the possibility of living with F.T. to R.T., "[w]e had to calm her down and we had to change the conversation and calm her down." R.T.'s social worker, Larry Overholser, also testified. His testimony about F.T.'s behavior during visits with R.T. would also lend credibility to R.T.'s claim that she would not accept F.T.'s care. For example, Over-holser testified: I talked to [R.T.] after that visit and spent some time talking to her and — and talking to the foster parent. [R.T.] was very upset. She was — she was visibly shaken, and the foster parent was a little bit fearful too. But [R.T.] was very visibly upset and visibly shaken and scared. At that time I — I told [R.T.] that — that she had some say in the visit. That — that—I also told her that I was not going to force her to visit [F.T.] under those conditions. Overholser testified about subsequent conversations that he had with R.T. on the issue of visitation with F.T.: A I went out to the house and talked to [R.T.]. And [R.T.] told me that she was — she was afraid of [F.T.] and she didn't want to visit him any more. His behavior had scared her and — and she thought he was unpredictable. She didn't know what he would do, and she said she didn't want to visit him at that time. I — I gave some assurance that she had some — some say in the visit. Q All right. Were there any visitations after that time? A Since that time [R.T.] has pretty consistently refused to visit with [F.T.]. And I've talked to her. We saw the results of the psychological which came out, taken those into consideration, referred her to counseling to Dr. Karen Senzig who basically kind of confirmed some of the stuff that we were seeing. And after that point we had had requests for visitation but [R.T.] at that point was pretty strongly, pretty consistently, and in my — my opinion, justifiably, refusing to visit with him. So, I agreed not to force her to visit with him. I didn't feel like it was in her best interests to do that. Additionally, there was testimony that R.T. witnessed F.T. committing acts of domestic violence. B.T. testified that when they were together, F.T. threw a plate of spaghetti at her while R.T. crouched between her legs. She also testified that at a time when R.T. was in the home, F.T. knocked her into the wall and then "[h]e hit me in the face, broke my nose, and broke my shoulder blade as I laid on the floor." Given all of this evidence, it was not clearly erroneous for the court to conclude that R.T. refused to accept F.T.'s care, rendering her a child in need of aid. C. Did the Court Implicitly Overrule Judge Gonzalez's Order? F.T. claims that Judge Reese's order was inconsistent with Judge Gonzalez's order. F.T. argues that Judge Gonzalez found that no reasonable efforts had been made to encourage visitation. On the other hand, Judge Reese seems to have implicitly found that reasonable efforts had been made to encourage visitation. This is the only inconsistency to which F.T. points. There was no inconsistency between the orders because Judge Reese's order can be read to reflect the State's efforts at promoting visitation in the wake of Judge Gonzalez's order. Judge Reese's order was not inconsistent with Judge Gonzalez's order. D. Did the Court Err by Failing to Enter a Specific Visitation Schedule? Finally, F.T. argues that Judge Reese refused to enforce Judge Gonzalez's order that DFYS work towards reunification of R.T. with F.T. He claims that the superior court was required to find that the State had shown by clear and convincing evidence that termination of visitation was in the child's best interests. He argues that the State failed to meet this burden of proof. F.T. asks this court to remand this case with instructions that the trial court establish a specific visitation schedule, which should include "unsupervised visits, overnights, and extended visits during school holidays." In response, the State points out that there are two different burdens of proof in visitation eases. When reasonable visitation is actually or constructively terminated, the clear and convincing evidence standard applies. In re D.P., 861 P.2d 1166, 1167 (Alaska 1998); D.H., 723 P.2d at 1277. However, when "a parent's reasonable visitation rights are merely restricted," the burden is to prove that the restriction is in the child's best interests by a preponderance of the evidence. In re D.P., 861 P.2d at 1167; In re A.B., 791 P.2d 615, 618 (Alaska 1990). The State argues that it has not denied visitation but merely placed reasonable restrictions on visitation to protect R.T. Because F.T.'s right to visitation has been completely denied until he makes progress on his treatment plan, the clear and convincing standard applies. See D.H., 723 P.2d at 1276 (allowing foster parents to take child to Alabama had functional effect of terminating visitation rights of indigent parent). At trial, social worker Larry Overholser testified that within one week of Judge Gonzalez's order, Overholser contacted F.T. to discuss a reunification plan. He asked F.T. to come to his office to discuss reunification. The plan included F.T.'s participation in individual counseling, one-on-one parenting classes, and anger management training. Overholser claimed that F.T. was "ambivalent" about participating. Overholser contacted F.T. a week later and was told he was still thinking about it. Overholser testified that he was not aware that F.T. had taken any steps to comply with the treatment plan since Judge Gonzalez's order in March of that year. Overholser stated that he would allow visitation as soon as the counselor approved it. Judge Reese found that F.T. is "severely disturbed, and has acted inappropriately during visits." He acknowledged F.T.'s rights to reasonable visitation but stated that the State could defer visitation until F.T. "made adequate progress on the treatment plan, and visitation would not be damaging to the child." The trial court's decision is supported by clear and convincing evidence and is not clearly erroneous. There was a daunting compilation of evidence that visitation with F.T. at this point would seriously harm R.T. There was also significant evidence that F.T. is in need of anger management and parenting skills training. In light of this evidence, it was clearly in R.T.'s best interests to suspend visitation until F.T. begins making progress on the treatment plan. See K.T.E. v. State, 689 P.2d 472, 477-78 (Alaska 1984) (finding that banning visitation did not violate parent's right to reasonable visitation when there was testimony that visits were harming child); cf. In re D.P., 861 P.2d at 1167 (vacating order limiting visitation to two per year because state presented no evidence that limitation was in child's best interest); In re A.B., 791 P.2d at 617-18 (affirming trial court decision that state had failed to prove that limiting visitation to one clinical visit per week was in child's best interests where evidence showed that child's condition had stabilized during same time that more extensive visitation had been allowed). F.T. has raised the concern that R.T.'s therapist will never agree to allow visitation. However, the court ruled that DFYS will have to make the decision on visitation and that it cannot delegate that decision to a counselor. Because F.T. has not taken the necessary steps to follow through on his treatment plan, it is premature for him to complain that the State is likely to withhold visitation in an unreasonable manner. IV. CONCLUSION We conclude that the superior court's decision was correct in all respects. Once F.T. has commenced the treatment plan, he can petition the court if he believes that the State has unreasonably withheld visitation. The decision of the superior court is AFFIRMED. . B.T., R.T.'s mother, consented to having R.T. adopted by her foster parents. . Prior to the 1990 amendment to AS 47.10.083, under our decision in In re A.S., 740 P.2d 432, 434-436 (Alaska 1987), the only relevant question upon a petition to extend the State's custody of a child in need of aid was whether such an extension was in the best interests of the child. . For example, on the question of how soon visitation might be advisable, Dr. Senzig testified: I can't say about the near future because it would depend on what [F.T.] was doing in counseling. If after consulting with his therapist, there was reason to believe that he was making progress and had more ability to focus on [R.T.'s] needs, at that point I think visitations might be possible. . F.T. also argues that Judge Reese erroneously failed to consider and misconstrued evidence of how G.T. was doing under his care. F.T. presented testimony that G.T. is doing much better in his care. However, Judge Reese stated in his oral disposition that: I hoped to hear more about [F.TJ's success with [G.T.]. There was in the end almost no information about [G.T.]. Listening to the other testimony, I am quite concerned about [G.T.]. In this regard, F.T. himself testified that he took G.T. off his medications despite explicit warnings from G.T.'s psychiatrist. Additionally, it does not seem that G.T. is receiving any professional counseling. The trial court also received testimony that G.T. had been asked not to return for visits with friends at Alaska Baptist Home because G.T. was too disruptive. There was also evidence that G.T. is doing better; F.T. testified that he no longer has to be restrained and is doing better in school. Larry Overholser was also apparently told by a teacher that G.T. was doing better in school. Given the mixed nature of the testimony regarding G.T. and the fact that R.T. was refusing to return to F.T.'s care, the trial court's decision was not erroneous.

10346701

John P. RYAN and Jerome Trigg, III, Appellants, v. STATE of Alaska, Appellee

Ryan v. State

1995-07-14

Nos. A-5181, A-5251

1371

1385

899 P.2d 1371

899

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

John P. RYAN and Jerome Trigg, III, Appellants, v. STATE of Alaska, Appellee.

John P. RYAN and Jerome Trigg, III, Appellants, v. STATE of Alaska, Appellee. Nos. A-5181, A-5251. Court of Appeals of Alaska. July 14, 1995. H. Conner Thomas, Larson, Timbers & Van Winkle, Inc., Nome, for appellant Ryan. Sharon Barr, Asst. Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for appellant Trigg. James L. Hanley, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

8458

51788

OPINION MANNHEIMER, Judge. John F. Ryan and Jerome Trigg, III, appeal their convictions for second-degree sexual assault, AS 11.41.420(a). The victim of the assault, M.K., committed suicide a few hours before she was scheduled to testify at grand jury. The State nevertheless secured indictments against Ryan and Trigg, in large measure through the testimony of Nome Police Officer Kevin Michels. Officer Michels described the accounts of the assault that M.K. had given him in two separate interviews. Before trial, Ryan and Trigg challenged the admissibility of this hearsay evidence; they argued that their indictments should be thrown out, and they asked the superior court to preclude the State from presenting this evidence at trial. However, Superior Court Judge Michael I. Jeffery ruled that M.K.'s statements to the police were admissible under Alaska Evidence Rule 804(b)(5), one of Alaska's two "residual" hearsay exceptions. Following Judge Jeffery's decision that M.K.'s police interviews were admissible against the defendants, Ryan entered a Co-oksey plea to the sexual assault charge, preserving this evidentiary issue for appeal. Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). As part of the plea bargain, Ryan agreed to testify against Trigg. Trigg went to trial and was convicted. Now, Ryan and Trigg renew their challenges to the admission of M.K.'s statements to the police. As will be explained below, we dismiss Ryan's appeal for lack of jurisdiction. However, in Trigg's appeal, we hold that M.K.'s statements were inadmissible hearsay. The Hearsay Rule and the Role of the Residual Exceptions Codified in Alaska Evidence Rules 803(23) and 804(b)(5) The hearsay rule prohibits a witness from testifying about statements made by someone else if this testimony is being offered to prove that what the other person asserted is true. See Alaska Evidence Rule 801(a)-(c). In the present case, a police officer was permitted to testify that (1) M.K. said she had been sexually assaulted by two men and (2) later, in a line-up, M.K. identified these men as Ryan and Trigg. This testimony was hearsay. Unless the testimony fell within an exception to the hearsay rule, it could not be used against Ryan or Trigg (over their objection). "The theory of the hearsay rule is that the many possible deficiencies, suppressions, [and other] sources of error and untrustwor-thiness[ ] which lie underneath the . untested assertion of a witness [ ] may be best brought to light and exposed by the test of cross-examination." John H. Wigmore, Evidence (Chadbourn rev'n 1974), § 1362, Vol. 5, p. 3. Or, as stated by Chief Judge Kent in Coleman v. Southwick, 9 Johns. 45, 50 (N.Y.1812), Hearsay testimony is from the very nature of it attended with . doubts and diffieulties[J A person who relates a hearsay [account] is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, [or] to remove any ambiguities; he entrenches himself in the simple assertion that he was told so, and leaves the burden [of explanation] entirely on his dead or absent author. (Quoted in Wigmore, § 1362, Vol. 5, pp. 6-7.) By definition, when hearsay testimony is introduced, the person who actually made the hearsay statements is not subjected to adverse questioning — questioning that might reveal potential inaccuracies in the speaker's perception of the events being described, or that might reveal the speaker's potential motives to misrepresent or color his or her description of what happened. For this reason, the law distrusts hearsay, allowing it only when the circumstances of the utterance and/or the motivation of the speaker affirmatively demonstrate good reason to credit the out-of-court statement. Various exceptions to the hearsay rule are codified in Alaska Evidence Rules 801(d), 803, and 804. For the most part, these codified exceptions either come directly from the common law or are variations on the exceptions recognized at common law. As the Alaska Supreme Court has observed, The traditional exceptions to the hearsay rule form two general classes: (1) those statements which are so inherently rehable that cross-examination is thought unnecessary (Rule 803); and (2) those statements which are sufficiently rehable to be admitted in hght of their great evidentiary value when the declarant is unavailable (Rule 804). Matter of A.S.W., 834 P.2d 801, 804 (Alaska 1992). In addition to these traditional exceptions, both Evidence Rule 803 and Evidence Rule 804(b) contain "residual" clauses that authorize courts to allow hearsay testimony even when it does not conform to any other hsted exception. These two residual clauses, Evidence Rules 803(23) and 804(b)(5), are founded on the recognition that there are certain exceptional circumstances where evidence which is found by a court to have guarantees of trustworthiness equivalent to or exceeding the guarantees reflected by the presently limited exceptions, and to have a high degree of probativeness and necessity could properly be admissible. Commentary to Alaska Evidence Rule 803(23), first paragraph (quoting the report issued by the United States Senate Committee on the Judiciary concerning the corresponding provisions of the Federal Rules of Evidence). However, even though the Alaska Supreme Court included these residual clauses in Evidence Rules 803 and 804(b), the court has cautioned trial judges that the residual exceptions to the hearsay rule "are to be used only on rare occasions". A.S.W., 834 P.2d at 804. Accord, Brandon v. State, 778 P.2d 221, 227 (Alaska App.1989) ("From the commentary, it appears that it was anticipated that the residual exceptions were to be used rarely.") The residual hearsay exception at issue in this case, Evidence Rule 804(b)(5), reads (in pertinent part): (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. Under this rule, a court is authorized to admit hearsay evidence that is not specifically covered by any of the other exceptions listed in Rule 804(b) if the proponent of the evidence proves (1) that the person who made the out-of-court statement "is unavailable as a witness", (2) that the proposed evidence manifests "circumstantial guarantees of trustworthiness" equivalent to the guarantees of trustworthiness possessed by the hearsay covered in the other hsted exceptions, (3) that the evidence is relevant to a "material" fact (an important disputed fact), (4) that the evidence "is more probative on [that] point . than any other evidence which the proponent [could] procure through reasonable efforts", and (5) that "the general purposes of [the evidence] rules and the interests of justice [would] best be served by admission of the [hearsay]". Because the hearsay issue in this case arises in the context of a criminal prosecution, the hearsay must satisfy not only the requirements of Evidence Rule 804(b) but also the requirements of the Confrontation Clauses of the Federal and Alaska Constitutions (the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Alaska Constitution). The residual hearsay exceptions in Evidence Rules 803(24) and 804(b)(5) are not "firmly rooted hearsay exceptions"; thus, any hearsay admitted under these residual clauses must demonstrate "particularized guarantees of trustworthiness" to satisfy the demands of the Confrontation Clause. Idaho v. Wright, 497 U.S. 805, 817-18, 110 S.Ct. 3139, 3147-48, 111 L.Ed.2d 638 (1990) (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). These "particularized guarantees of trustworthiness" must . be drawn from the totality of circumstances that surround the making of the statement and that render the declar-ant particularly worthy of belief.... [E]videnee admitted under [a residual hearsay exception] must . be so trustworthy that adversarial testing would add little to its reliability. Idaho v. Wright, 497 U.S. at 820-21, 110 S.Ct. at 3149. In Idaho v. Wright, the United States Supreme Court held that, at least for Confrontation Clause purposes, a hearsay statement's "guarantees of trustworthiness" must be "inherent" in the statement. That is, the trustworthiness of the hearsay must be established solely from the circumstances of the statement and the mental state of the declarant. The required "guarantees of trustworthiness" may not be established by showing that the hearsay statement is corroborated by other evidence. Idaho v. Wright, 497 U.S. at 822-24, 110 S.Ct. at 3150-51. The Challenged Evidence in this Case On the afternoon of June 8, 1993, M.K. came to the office of the Nome police to report the theft of a four-wheel ATV (all-terrain vehicle). When M.K. stated that the four-wheeler had been stolen from a camp at Mile Four on the Nome-Council Highway, the police told M.K. that she had to make her report to the Alaska State Troopers because the Troopers had jurisdiction over the area where the theft occurred. Officer Kevin Mi-chels was present at the police station when M.K. came to report the theft, and he overheard this conversation. M.K. left the police station but she returned a little while later, this time accompanied by her boyfriend, Tim Powers. Again, M.K. tried to report the theft of the four-wheeler, and again the police directed her to the Troopers. At approximately 4:20 p.m., M.K. and Tim Powers arrived at the State Troopers' office to report the theft of the four-wheeler. However, M.K. told the troopers that the vehicle had been stolen from a location in downtown Nome. When the troopers heard this, they told M.K. that the Nome police had jurisdiction over the theft. In the meantime, while M.K. and Powers were at the State Troopers' office, the Nome police received a visit from Diana Freeman, an alcohol counselor. Ms. Freeman came to the police because one of her clients had told her that he was involved in, or had witnessed, a sexual assault earlier that morning. The Al-Anon client (appellant John Ryan) told Freeman that the assault had occurred at Mile Four on the Nome-Council Highway, and that, following the assault, he and a companion (appellant Jerome Trigg) had stolen the woman's four-wheeler. Ryan had given Freeman the key to the stolen four-wheeler, and Freeman turned this key over to the police. Officer Michels heard Freeman's report, and he deduced that M.K. might have been the victim of the reported sexual assault. Officer Michels first went to interview Ryan. Ryan confirmed that he and Trigg had taken a woman to Trigg's camp at Mile Four of the Nome-Council Highway. Ryan told Michels that he had held the woman down while Trigg had forcible intercourse with her. Ryan said that he did not know the woman's last name, but her first name was "M." According to Ryan, as the act of intercourse progressed, the woman stopped struggling and appeared to be enjoying it, so he went to an adjoining room. Ryan denied having sex with the woman himself. While Michels was speaking to Ryan, he received a call from his dispatcher; the dispatcher told Michels that M.K. had returned to the Nome police station. Michels went back to the station, where he conducted a tape-recorded interview with M.K.. When Officer Michels confronted M.K. with his suspicion that she had been raped, M.K. told him that this was true — that she had been raped by two men. M.K. told Michels that she did not know the names of the two men. However, she was able to identify photographs of John Ryan and Jerome Trigg, III, when she was shown a photo-lineup during the interview. During this first interview with Michels, M.K. denied that she had been socializing with the two men prior to the assault. She told Michels that the two men stole the key to her four-wheeler from her pocket while she was in the Board of Trade Saloon in downtown Nome. The men then left the bar and drove away on her four-wheeler. M.K. told Michels that she enlisted the help of her uncle, who owned a white truck, and together she and her uncle followed the stolen four-wheeler to Mile Four of the Nome-Couneil Highway. According to M.K.'s first interview, her uncle dropped her off at the cabin and left. M.K. entered the cabin, where she found the two men. Both men appeared to be drunk. They ordered M.K. to take off her clothes. M.K. said that she complied with their demand because she was scared. M.K. told Michels that both men sexually assaulted her, inserting both their penises and their hands inside her. M.K. told Michels that, during the assault, one of the men pointed a rifle at her, and the men also hit her with a red-handled Phillips screwdriver. After the assault, the men left on her four-wheeler, and M.K. began to walk back to town. She told Michels that she left a pair of blue socks at the cabin. When she got back to Nome, M.K. went to a friend's house and showered; then she contacted her boyfriend, Tim Powers, and started searching for the four-wheeler. Michels asked M.K. for her uncle's name, but M.K. could not recall his name. When Officer Michels asked M.K. why she had not reported the sexual assault, M.K.'s first response was, "[Bejcause I was scared and Tim might — I'm scared". Then, when Michels asked M.K. to specify what she was seared of, M.K. asserted that the men had threatened to kill her if she ever told anyone about the assault. She repeated this assertion several times during the ensuing interview. After sending M.K. to the hospital for a physical examination, Officer Michels obtained a search warrant for Trigg's cabin. In the cabin, Michels found M.K.'s socks, a red-handled Phillips screwdriver, and a plastic piece that had broken off the frame of M.K.'s eyeglasses. The next day (June 9,1993), Michels interviewed M.K. a second time. In this second statement, M.K. altered her previous account of how she arrived at the cabin. She also altered her account of how the rape occurred. In the second interview, M.K. admitted that she had been socializing with Trigg and Ryan at the Board of Trade. After the bar closed, she drove the two men out to Trigg's cabin on her four-wheeler. They took with them a large quantity of alcohol. M.K. told Michels that, at the cabin, the three of them continued to drink. At some point, M.K. asserted, things got out of hand and she was raped by both men. During the second interview, Michels showed M.K. photographs of firearms in order to determine if she could identify the rifle that she said had been pointed at her during the assault. The group of photographs shown to M.K. included photos of guns that had been seized from the Trigg camp during the execution of the search warrant, as well as photos of weapons unrelated to the case. M.K. identified an unrelated rifle as being closest to the type of firearm that had been pointed at her. M.K. was scheduled to testify before the Nome grand jury on June 11, 1993. However, she committed suicide early that morning by jumping into the ocean. The Superior Court's Ruling In spite of M.K.'s death, the grand jury met on June 11 to consider indictments against Ryan and Trigg. The prosecuting attorney called Officer Michels to tell the grand jury about his two interviews with M.K.. This hearsay testimony was offered under two theories: that M.K.'s statements to Michels were "excited utterances" under Evidence Rule 803(2) and that M.K.'s statements to Michels constituted a "first complaint of rape" under the hearsay exception recognized in Greenway v. State, 626 P.2d 1060, 1060-61 (Alaska 1980). The grand jury indicted Ryan and Trigg for first-degree sexual assault. Following their indictment, Ryan and Trigg challenged the admissibility of Mi-chels's hearsay testimony. Judge Jeffery agreed with the defendants that neither of the prosecutor's theories of admissibility was valid. The judge ruled that, under the circumstances of the case, M.K.'s statements were not excited utterances: Although the interview tape makes it clear that M.K. was still under a great amount of stress from the assault and the threats allegedly made by the assailants, her statements cannot be said to be spontaneous exclamations. She had twelve or more hours, including several hours in the company of her boyfriend, to think about the events that happened to her during the night. Hearsay statements cannot be considered admissible "excited utterances" pursuant to Evidence Rule 803(2) unless it is shown that "the declarant's condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation". United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980), quoted in Lipscomb v. State, 700 P.2d 1298, 1307 (Alaska App.1985)[.] . Even considering the stress apparently being felt by M.K. and the nature of the statements she made to the officer, the Court finds that the state has failed to show that [her] statements were spontaneous, excited utterances. Judge Jeffery also rejected the prosecutor's theory that M.K.'s statements were admissible as a "first complaint" of rape. The judge correctly noted that evidence of the victim's first complaint is admitted to rebut the negative inference that might arise if the trier of fact heard no evidence to indicate that the victim had complained of the rape prior to trial. Greenway, 626 P.2d at 1060-61. Judge Jeffery ruled that, because the rationale of the "first complaint" exception is to corroborate the victim's testimony, the State can rely on this exception only when the victim testifies. Because M.K. had not testified at grand jury and could not testify at trial, her statements to Michels could not be admitted under the "first complaint" hearsay exception. See Wigmore, § 1136, Vol. 4, p. 310; Baney v. People, 130 Colo. 318, 275 P.2d 195, 198-99 (1954). The State does not challenge this ruling on appeal. However, despite his rejection of the State's initial theories of admissibility, Judge Jeffery ruled that M.K.'s statements to Officer Michels were admissible under Evidence Rule 804(b)(5). He found that M.K. was not available as a witness, that M.K.'s statements dealt with facts material to the prosecution of Ryan and Trigg, and that M.K.'s statements were more probative than any other evidence available to the State. As explained at the outset of this opinion, the remaining requirements for admissibility of hearsay under Evidence Rule 804(b)(5) center upon the trustworthiness of the hearsay. Judge Jeffery ruled that M.K.'s statements were trustworthy enough to be admitted under Rule 804(b)(5): [M.K.] was afraid for her life if she told anyone about the sexual assault. She showed obvious stress and emotion when actually discussing the sexual assault.... Her statements were made in response to the most limited questioning by the officer, after she had voluntarily come to the police station. [Only] approximately twelve hours had passed since the assault; the incident was fresh in her mind. The Court acknowledges the defendants' arguments about the unreliability of M.K.'s statement: she lied about . the way she got out to the Trigg camp, [she lied when she asserted] that her ATV had been stolen at the bar in Nome, and [she lied when she asserted] that the two men dug in her pocket at the bar and took the key to the ATV. She admitted to the officer that these untruths were made because of her feelings about what her boyfriend would say about her use of the ATV to accompany the two men out to the Trigg camp. The defendants argue that these false statements in the initial interview show M.K.'s entire statement is suspect. They . argue that she had a motive for invents ing a sexual assault story, because she was . worried about how her boyfriend would react to her having sex with other men[.] [Nevertheless,] the Court finds that the factors supporting admissibility, including the Court's evaluation of [M.K's] demean- or while she was making the taped statement, outweigh the concerns presented by the defense. Her statements, including [her] identification [of Ryan and Trigg], have indicia of reliability roughly equiva lent to the other exceptions to the hearsay rule stated in Evidence Rule 804(b). Our Analysis: Admissibility of the Hearsay Under Evidence Rule 804(b)(5) We employ an "abuse of discretion" standard to review the superior court's ruling on the admissibility of Officer Michels's hearsay testimony. Matter of A.S.W., 834 P.2d at 803 n. 3. Accord, United States v. Doerr, 886 F.2d 944, 954 (7th Cir.1989); United States v. Curro, 847 F.2d 325, 327 (6th Cir.1988); Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir.1982). This standard of review bids us give considerable deference to the decision of the trial judge. Nevertheless, having reviewed the record, we conclude that the challenged hearsay testimony was not admissible. As discussed above, the touchstone for determining the admissibility of hearsay under Evidence Rule 804(b)(5) is its trustworthiness. The hearsay must possess at least the same guarantees of trustworthiness that characterize the other types of admissible hearsay listed in Rules 804(b)(1)—(4). To analyze the degree of trustworthiness possessed by a hearsay statement, courts have examined "the nature and character of the statement, the relationship of the [declarant to the other] parties, the probable motivation of the declarant in making the statement, and the circumstances under which the statement was made". People v. Fuller, 788 P.2d 741, 745 (Colo.1990) (citing Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, § 803(24)[01], Vol. 4, p. 803-376). In judging M.K.'s statements to be trustworthy enough for admission under Rule 804(b)(5), Judge Jeffery relied in part on the circumstance that only twelve hours had elapsed since the events at the camp. From this, Judge Jeffery inferred that M.K's memory of these events was fresh and therefore her account was inherently more reliable. Compare In re Drake, 786 F.Supp. 229, 234-35 (E.D.N.Y.1992) (accuracy of the declarant's memory was inferred, in part, from the short time span between the events and the declarant's statement). The shortness of the elapsed time between an occurrence and a witness's account of it may indicate that the witness has an accurate memory of the occurrence. However, the real question is not the accuracy of the witness's memory, but rather the accuracy of the witness's out-of-court statements. A witness who has a perfect memory of an occurrence may nevertheless misrepresent that occurrence when he or she speaks to others about it. Accurate memory will help ensure the trustworthiness of the witness's statements only if the witness is motivated to give an accurate account. As Judge Jeffery himself noted, M.K. spent many hours "in the company of her boyfriend" before she gave her account of the sexual assault, and during this time M.K. had the opportunity "to think about the events that happened to her during the night". For these reasons, Judge Jeffery rejected the State's contention that M.K.'s statements to Officer Michels were "excited utterances". These factors also suggest a potential reason why M.K. might have been motivated to misrepresent the events that happened at the camp. We note that M.K.'s first response, when asked why she had not reported the sexual assault earlier, was: "[Be]cause I was scared and Tim might — I'm scared". M.K. falsely told the Troopers and, later, Officer Michels that the four-wheeler had been stolen from a location in downtown Nome. Her apparent motivation was to avoid revealing to her boyfriend that she had gone drinking with two other men. The fact that M.K. may have altered her account of the theft in anticipation of her boyfriend's likely reaction to the truth suggests that her account of the sexual encounter at the camp should be subjected to scrutiny. As one might infer from the preceding discussion, the primary factor used by courts in evaluating the trustworthiness of hearsay is the potential motivation of the absent speaker either to speak the truth or, conversely, to withhold or alter the truth. See Rychart v. State, 778 P.2d at 231 (Alaska App.1989) (citing United States v. Marchini, 797 F.2d 759, 763 (9th Cir.1986)). See also Matanuska Electric Association, Inc. v. Weissler, 723 P.2d 600, 611 n. 17 (Alaska 1986) (upholding the trial court's decision to admit the affidavit of an unavailable witness under Evidence Rule 804(b)(5); the trial judge found "a substantial guarantee of trustworthiness . in the fact that the witness has no motive to testify favorably to [the] plaintiff, and in fact appears to dislike [the] plaintiff.") A prime illustration of this principle is the decision in Dallas County v. Commercial Union Assurance Co., Ltd., 286 F.2d 388 (5th Cir.1961), the case that convinced the Senate Committee on the Judiciary that the new Federal Rules of Evidence should include a residual hearsay exception. In Dallas County, the clock tower of a county courthouse had collapsed, damaging the courthouse. The collapse occurred a few days after the tower was struck by lightning. The main factual issue at trial was whether the collapse had been caused by the lightning strike (in which case the loss was covered by the insurance policy) or whether, instead, the collapse was due to pre-existing weakness and deterioration of the structure (in which case the loss was not covered). As stated in the Senate Committee's report, Investigation of the structure revealed the presence of charcoal and charred timbers. In order to show that lightning may not have been the cause of the charring, the insurer offered a copy of a local newspaper published over 50 years earlier containing an unsigned article describing a fire in the courthouse while it was under construction. The Court found that the newspaper [article] did not fit within any . recognized hearsay exception. The [c]ourt concluded, however, that the article was trustworthy because it was inconceivable that a newspaper reporter in a small town would report a fire in the courthouse if none had occurred. (Quoted in Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual (6th ed. 1994), Vol. 3, pp. 1580-81.) The rationale of the Dallas County decision, and indeed the underlying rationale of the residual hearsay exceptions, is that hearsay can be deemed trustworthy when all the circumstances suggest that the speaker had good reason to be truthful and no apparent reason to falsify or to withhold pertinent information. In such situations, courts have readily admitted hearsay statements. For instance, in State v. Echeverria, 51 Or.App. 513, 626 P.2d 897 (1981), a burglary victim prepared a list of the items stolen from her house to aid the police in identifying and recovering the property. The victim died of natural causes before the defendant's trial; nevertheless, her list was admitted under Oregon's common-law equivalent to Rule 804(b)(5). The court concluded: "Mrs. McKean had no reason to falsify the list. On the contrary, she was motivated, except perhaps for the values she attached to the items, to give as accurate a list as possible to aid the police in locating her property." Echeverria, 626 P.2d at 900. Also see In re Drake, 786 F.Supp. at 234-35, where the court admitted a statement given by a woman to the FBI; the woman was trying to assist the FBI in locating her missing boyfriend, who had been abducted by mobsters but who she believed was still alive. In the present case, many circumstances suggest the truthfulness of M.K's report of sexual assault to Officer Michels. However, other circumstances suggest that M.K. may have had a motive to give an inaccurate account of what had happened to her. Her statements do not carry the same indicia of trustworthiness as the statements admitted in Dallas County, Echeverria, and Drake. Courts have recognized that an alternative mark of trustworthiness is the speaker's awareness (or at least belief) that, by cooperating with the police, the speaker is jeopardizing his or her personal safety. For instance, in United States v. Accetturo, 966 F.2d 631, 635 (11th Cir.1992), cert. denied, Basha v. United States, — U.S.—, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993), the court allowed the government to introduce out-of-court statements of a deceased witness who had been in debt to loan sharks and who had already been threatened with physical harm when he decided to go to the police. The court concluded that the man (who was murdered following his police interview) "would have had no incentive to manufacture a statement that would cause an investigation and alert the defendants that he had gone to the police". Accetturo, 966 F.2d at 635 (footnote omitted). And in United States v. Curro, 847 F.2d 325, 327 (6th Cir.1988), the court upheld the admission of the testimony of a grand jury witness who committed suicide before trial. The court relied primarily on the fact that the witness had knowingly placed himself at considerable risk by testifying against organized crime figures. In his decision in this case, Judge Jeffery relied heavily on Accetturo. The judge noted that M.K. had repeatedly told Michels that she had been threatened with death if she ever revealed the sexual assault. Judge Jeffery was also strongly influenced by the degree of emotional distress that M.K. exhibited on the tape recording of her first interview with Michels; the judge found that M.K.'s distress corroborated her assertions that she had been threatened. Based on this evidence, Judge Jeffery apparently concluded that M.K. had initially refrained from reporting the sexual assault because she feared future harm, but then she later found the strength to report the sexual assault despite her fear. Using Accetturo as a guide, Judge Jeffery concluded that M.K.'s statements about the sexual assault were trustworthy. We, however, do not see such a clear analogy to Accetturo. The details of M.K.'s interview with Michels suggest an alternative view of M.K.'s state of mind at the time she asserted that she had been raped. When M.K. returned to the Nome police station after visiting the Troopers, she still intended simply to pursue the theft of the four-wheeler. It was Officer Michels who questioned M.K. as to whether she might have been sexually assaulted. M.K.: Somebody stole the Honda [ATV] and stole my carton of cigarettes and then beat me up and bit me right there, too. I don't know those two guys. They . MICHELS: Okay. M.K.: . broke my glasses, but I fixed it. I used Super Glue; I bought some. MICHELS: I just talked to one of them, [and he] said [that] the other guy sexually assaulted you. Is that true? M.K.: Yeah. MICHELS: Okay. Do you know either one of [their] names? M.K.: I don't even know their names. They — they raped me, too. MICHELS: Both of them? M.K.: Yeah, both of them. MICHELS: How come you didn't report this right away when you first came M.K.: Because . MICHELS: . into the office? M.K.: Because they took it while I was at the BOT [Board of Trade] — they took it, they took the Honda. MICHELS: Okay, but I . M.K.: They . MICHELS: . but I mean the sexual assault and that stuff. M.K.: 'Cause I was scared, and Tim might — I'm scared. MICHELS: Scared of? M.K.: Those two people. MICHELS: Those . M.K.: Because they — they said that they were going to kill me if I tell somebody some — if I tell[.] Judge Jeffery concluded, after listening to the interview, that M.K. had been afraid for her life, that she then overcame her fear and revealed the sexual assault to Michels, and that therefore her later statements possessed a substantial guarantee of trustworthiness. This conclusion, while perhaps reasonable, is not the only plausible explanation for M.K.'s statements; many of the facts argue against this conclusion. Even though M.K. ostensibly feared for her life if she revealed the sexual assault, M.K. unhesitatingly replied "Yes" the first time Michels asked her if she had been assaulted. A moment later, apparently to make sure that Michels had understood her answer, M.K. volunteered, "They raped me, too." Further, even after M.K. agreed that she had been sexually assaulted, she continued to mislead Michels about the theft of the ATV and how she came to be at the remote camp in the company of Ryan and Trigg. M.K.'s continuing, conscious attempt to mislead Officer Michels about major details of the occurrence is at least arguably inconsistent with the superior court's view of M.K. as a crime victim who, suddenly freed from a stifling fear, could finally reveal the truth. We also note that there is a certain circularity in the superior court's reason for crediting M.K.'s statements. Judge Jeffery found that M.K. was under emotional stress when she spoke to Officer Michels. He further found that M.K.'s emotional stress stemmed from death threats made to her by Ryan and Trigg. However, in reaching this conclusion, Judge Jeffery seems to have assumed the trustworthiness of M.K.'s statements concerning the death threats, then used this assumption as the foundation for his conclusion that M.K.'s emotional distress stemmed from these threats — a conclusion that allowed him to draw the analogy to Accetturo and deem M.K's statements trustworthy. The source of M.K.'s emotional distress is not self-evident. As the above-quoted excerpt of the interview shows, when M.K. initially explained why she had failed to report the sexual assault, she referred to her boyfriend, Tim Powers. M.K.'s answer to Officer Michels's question was: " 'Cause I was scared, and Tim might — I'm scared". M.K.'s answer is undoubtedly ambiguous. The fright she mentions may indeed have arisen from the threats of death she later described. However, one can not ignore the possibility that M.K. had other motives for failing to report a sexual assault. Moreover, even assuming that M.K. was afraid of harm when she spoke to Officer Michels, this does not necessarily make her case analogous to Accetturo and Curro. A speaker's fear does not, by itself, guarantee the truthfulness of his or her statements. Indeed, fear often leads people to falsify or to hold back the truth. The crucial aspect of Accetturo and Curro is that, under the circumstances of those cases, the out-of-court speakers had little to gain and much to lose by providing information against mobsters who could retaliate against them (either personally or through a web of associates). By providing incriminating information to the police, the speakers placed themselves at risk and obtained no apparent benefit for themselves. They therefore might be compared to people who make statements against their own pecuniary or penal interest; see Evidence Rule 804(b)(3), which creates a hearsay exception for statements "so far contrary to the declar-ant's . interest . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true". M.K's situation presents a different sort of case. Although her reluctance to make a report of sexual assault may have stemmed from her fear of Ryan and Trigg, the circumstances also suggest other possible reasons why she might have misrepresented her encounter with the two men. We are not suggesting that we think M.K. was lying when she told Officer Michels that she had been sexually assaulted. Our task is not to determine whether M.K. was telling the truth. Instead, our duty is to determine whether M.K.'s statements to Officer Michels are so inherently trustworthy, so free from possible doubt, that cross-examination of M.K. concerning those statements would yield negligible benefit to Ryan and Trigg as they stood trial for sexual assault. Viewing all the circumstances of this case, we can not say that Ryan and Trigg would have derived no substantive benefit from cross-examining M.K. about her statements to Officer Mi-chels. When the record is examined as a whole, it is clear that M.K.'s statements to the police did not have "circumstantial guarantees of trustworthiness" equivalent to the guarantees of trustworthiness possessed by the hearsay covered in the other exceptions listed in Evidence Rule 804(b) (1) — (4). We therefore conclude that Officer Miehels's testimony about M.K.'s statements to him was not admissible under Evidence Rule 804(b)(5). For similar reasons, we also hold that admission of M.K.'s statements against Trigg at his criminal trial violated the Confrontation Clauses of the United States and the Alaska Constitutions. M.K.'s statements are not so obviously trustworthy that little would be gained by subjecting them to inquiry through cross-examination. Idaho v. Wright, 497 U.S. at 821, 110 S.Ct. at 3149. Conclusion Ryan and Trigg stand in different procedural postures on appeal. Because of this, we reach different resolutions of their two appeals. In the superior court, Trigg attacked his grand jury indictment, asserting that Officer Michels's hearsay testimony was inadmissible. When this attack failed, Trigg went to trial. During the trial, Trigg again unsuccessfully objected to the admission of this hearsay. Thus, Trigg preserved the hearsay issue both for purposes of attacking his indictment and attacking his conviction. Ryan also attacked his grand jury indictment. However, when this attack failed, Ryan chose not to go to trial; instead, he entered a Cooksey plea. This plea was premised on the assumption (indeed, the State's stipulation) that the admissibility of M.K.'s statements was a dispositive issue— that the State would have no ease against Ryan if M.K's out-of-court statements were ruled inadmissible. ) An evidentiary issue is dispositive for Cooksey purposes only if, following a ruling in favor of the defendant, the government's remaining evidence would be insufficient to withstand a defense motion for judgement of acquittal. Miles v. State, 825 P.2d 904, 906 (Alaska App.1992). This does not appear to be the case here. Ryan confessed that he had helped Trigg commit a sexual assault upon a woman whose first name was "M.". Ryan also confessed that he and Trigg had stolen the woman's ATV the next morning. He possessed and later relinquished the key to the stolen ATV. M.K. exhibited physical injuries consistent with having been assaulted. Moreover, when the police searched Trigg's camp at Mile Four of the Nome-Council Highway, they found evidence that corroborated Ryan's confession. This evidence, when viewed in the light most favorable to the State, appears sufficient to corroborate Ryan's confession for purposes of the corpus delicti rule. See Castillo v. State, 614 P.2d 756, 758 (Alaska 1980); Armstrong v. State, 502 P.2d 440, 447 (Alaska 1972). Because this evidence, even without the support of M.K.'s statements, could apparently withstand a motion for judgement of acquittal, the admissibility of M.K's statements to Officer Michels is not dispositive under Miles. For similar reasons, Ryan's grand jury challenge is also not dispositive for Co-oksey purposes. As just noted, the State has sufficient evidence (even without M.K.'s statements) to make a case against Ryan. Thus, even if we were to overturn Ryan's indictment because of Officer Michels's hearsay testimony, the State could still reindict Ryan. Compare Shatters v. State, 751 P.2d 31, 36 (Alaska App.1988); Wilson v. State, 711 P.2d 547, 550 n. 2 (Alaska App.1985) (A defendant who claims to have received ineffective assistance of counsel because the defense attorney failed to attack the grand jury indictment must show not only that the attack would have succeeded but that the State thereafter could not have obtained another indictment.). Thus, Ryan's grand jury issue is not dispositive of the charge against him, and it can not be litigated by way of a Cooksey plea. Because the hearsay issue Ryan raises on appeal is not dispositive of the charge against him, Ryan's Cooksey plea is invalid. We therefore dismiss his appeal. Heuga v. State, 609 P.2d 547, 548 (Alaska 1980); Miles, 825 P.2d at 907. Because Ryan has not received the expected benefit of his plea bargain (the right to litigate the hearsay issue on appeal), Ryan must be given the opportunity to withdraw his no contest plea. We now turn to resolution of Trigg's appeal. Because Trigg went to trial and because the State used M.K.'s out-of-court statements to secure Trigg's conviction, we reverse Trigg's conviction. (The State does not argue that the erroneous admission of M.K.'s statements could be considered harmless error.) We must next address Trigg's claim that his indictment should be set aside because the grand jury heard the inadmissible hearsay testimony concerning M.K.'s statements. The test governing this claim was explained in Stern v. State, 827 P.2d 442 (Alaska App.1992): [Wlhen a defendant proves that the grand jury heard improper evidence, the superior court must engage in a two-part analysis. The superior court first subtracts the improper evidence from the total case heard by the grand jury and determines whether the remaining evidence would be legally sufficient to support the indictment. If the remaining evidence is legally sufficient, the court then assesses the degree to which the improper evidence might have unfairly prejudiced the grand jury's consideration of the case. The question the court must ask itself is whether, even though the remaining admissible evidence is legally sufficient to support an indictment, the probative force of that admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict. Stern, 827 P.2d at 445-46. On appeal, Trigg relies primarily on the fact that, in the superior court, "the State repeatedly acknowledged . that, without M.K.'s statements, the State had no case". As we have just pointed out, the State was wrong, at least for Cooksey purposes. The grand jury evidence included Ryan's confession as well as evidence developed during the medical examination of M.K. and evidence found during the search of Trigg's camp. This evidence was sufficient to support the grand jury's decision to indict Trigg. However, despite the fact that the State's remaining evidence, if unexplained and un-contradicted, was sufficient to obtain an indictment, our review of the grand jury record convinces us that the grand jury's decision to indict Trigg must have been heavily influenced by the evidence of M.K.'s statements to Officer Michels. We therefore set aside Trigg's indictment. Stern, 827 P.2d at 446. To summarize: (1) Ryan's Cooksey plea is invalid because the issues he preserved for appeal are not dispositive. Ryan's appeal is DISMISSED and his case is REMANDED to the superior court; Ryan shall be allowed to withdraw his plea of no contest. (2) In Trigg's appeal, we hold that M.K's statements to Officer Michels were not admissible under Evidence Rule 804(b)(5). Trigg's conviction for second-degree sexual assault is REVERSED and his indictment is set aside. If the State reindicts Trigg, he is entitled to a new trial. . To be precise, Alaska Evidence Rule 801(d) declares that various statements are not "hearsay" even though these statements clearly fall within the definition of hearsay contained in Rule 801(c). The drafters of the Federal Evidence Rules had certain philosophical reasons for removing the types of statements listed in Rule 801(d) from the definition of hearsay. The drafters of the Alaska Evidence Rules adopted the same approach, partly from agreement with the federal drafters and partly to avoid a potentially confusing divergence from the numbering system used in the federal rules. See Commentary to Alaska Evidence Rule 801(d). However, for most purposes, the types of statements listed in Rule 801(d) can be thought of as being admissible despite their hearsay character — that is, as being exceptions to the hearsay rule. . Ryan's initial statements to Freeman were less equivocal on the issue of whether M.K. was raped. Ryan told Freeman that he and Trigg "had been drinking at [Trigg's] camp and that they had a lady with them, and [Trigg] wanted to have sex and the lady did not[.]" Ryan also told Freeman that, afterward, he and Trigg took the woman's four-wheeler and drove back to town, leaving the woman at the camp. Freeman asked Ryan if the woman "want[ed] this to happen", to which Ryan answered, "No, she fought." Freeman observed a bite mark on Ryan's hand; Ryan told Freeman that he had received this mark when the woman bit him as she struggled. . In its brief to this court, the State argues that M.K.'s later inconsistent statements (that is, her confession during the second interview that she had lied during the first interview) can not be used to determine the trustworthiness of the statements she made during the first interview. The State points out that the trustworthiness of a hearsay statement can not be established by proving that it is corroborated by other evidence. See Idaho v. Wright, 497 U.S. at 822-24, 110 S.Ct. at 3150-51; Rychart v. State, 778 P.2d 229, 232 (Alaska App.1989). The State asserts that, for similar reasons, the fact that the hearsay declarant has made inconsistent statements should not be used to evaluate the trustworthiness (or, more precisely, the un trustworthiness) of a hearsay statement. The State's argument, while perhaps ingenious, is inconsistent with both the law and common sense. In judging the reliability of an absent person's assertion, reasonable people would want to know, and would take into account, the fact that the same person had made an inconsistent assertion on another occasion. The case law recognizes and employs this rule of common sense. See State v. Luzanilla, 179 Ariz. 391, 880 P.2d 611, 616 (1994), cert. denied,-U.S.-, 115 S.Ct. 1406, 131 L.Ed.2d 293 (1995) (judging the trustworthiness of hearsay, in part, by asking whether the declarant has ever made inconsistent assertions); United States v. Donlon, 909 F.2d 650, 654 (1st Cir.1990) (judging the trustworthiness of hearsay by asking, among other things, whether the declarant has ever recanted the assertion); Wilander v. McDermott Intemat'l, Inc., 887 F.2d 88, 92 (5th Cir.1989) (same); United States v. Doerr, 886 F.2d 944, 956 (7th Cir.1989) (citing United States v. Snyder, 872 F.2d 1351, 1355-56 (7th Cir.1989)) (same); United States v. York, 852 F.2d 221, 225-26 (7th Cir.1988) (same). See also United States v. Fernandez, 892 F.2d 976, 983 (11th Cir.1989) (rejecting the admission of hearsay when the declarant had "an almost comically unreliable character" for truthfulness). . On appeal, the State argues that Judge Jeffery was wrong to reject the "excited utterance" exception. The State points out that Judge Jeffery found that M.K. was under "a great amount of stress from the assault" when she gave her first statement to Officer Michels. The fact that M.K. may have been under stress is not sufficient, by itself, to establish the admissibility of her hearsay statements under Evidence Rule 803(2). The question is whether M.K.'s out-of-court statements were the product of her conscious reflection about what she should say. "The theory of [Rule 803(2) ] is . that circumstances may produce a condition of excitement which temporarily stills the [.speaker's] capacity of reflection and produces utterances free of conscious fabrication." Commentary, Evidence Rule 803(1) — (2), third paragraph (emphasis added). Judge Jeffery found that M.K. had had ample time to reflect on what she would say to the police. The record fully supports the judge's conclusion. M.K.'s statements to Officer Michels concededly contain several conscious fabrications. Judge Jeffery did not abuse his discretion when he ruled that these statements were not "excited utterances". . These other exceptions are: (1) testimony given at an earlier court hearing or deposition, if the party against whom this earlier testimony is being offered had the opportunity and motivation to examine the now-absent witness on the issues being litigated; (2) a statement made when the speaker believed that his or her death was imminent, if the statement concerned the cause or circumstances of the impending death; (3) a statement so against the speaker's monetary, proprietary, or penal interest "that a reasonable person in the [speaker's] position would not have made the statement unless believing it to be true"; and (4) a statement concerning the speaker's own birth, adoption, ancestry, marriage, or other similar aspect of his or her personal or family history, as well as statements concerning similar aspects of a family member's or intimate friend's family history. . Trigg raises two other arguments on appeal, both concerning the State's loss of evidence before trial. The tape recording of M.K.'s second interview with Officer Michels and the "rape protocol kit" (the set of physical samples collected from M.K. during a physical examination) were both lost before trial. Judge Jeffery found that the loss was caused by police carelessness, not bad faith. With regard to the loss of the tape recording of M.K.'s second police interview. Judge Jeffery ruled that Trigg had not been prejudiced. That ruling is now moot. With regard to the loss of the rape protocol kit, Judge Jeffery found that Trigg had been prejudiced. As a remedy, the judge instructed Trigg's jury that the physical examination performed on M.K. "showed no evidence linking Jerome Trigg . with any sexual penetration or sexual contact [with] M.K.". Trigg argues that this instruction was not an adequate remedy and that Judge Jeffery should have dismissed the prosecution against him with prejudice. We, however, conclude that Judge Jeffery did not abuse his discretion when he selected this remedy for the State's negligent loss of evidence. Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980) (selection of an appropriate sanction when the government has lost evidence relevant to a criminal trial "is best left to the sound discretion of the trial judge"). Trigg's defense at trial was that he had engaged in consensual sexual intercourse with M.K.. Given this defense, Trigg suffered no prejudice from the loss of the rape protocol kit. . Alaska Statute 12.45.020, which requires corroboration of an accomplice's testimony to sustain a criminal conviction, does not apply to grand juiy proceedings. Merrill v. State, 423 P.2d 686, 695 (Alaska 1967).

10361509

COOK INLET PIPE LINE COMPANY, Appellant, v. THE ALASKA PUBLIC UTILITIES COMMISSION, and Tesoro Alaska Petroleum Company, Appellees

Cook Inlet Pipe Line Co. v. Alaska Public Utilities Commission

1992-06-26

No. S-4144

343

354

836 P.2d 343

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

COOK INLET PIPE LINE COMPANY, Appellant, v. THE ALASKA PUBLIC UTILITIES COMMISSION, and Tesoro Alaska Petroleum Company, Appellees.

COOK INLET PIPE LINE COMPANY, Appellant, v. THE ALASKA PUBLIC UTILITIES COMMISSION, and Tesoro Alaska Petroleum Company, Appellees. No. S-4144. Supreme Court of Alaska. June 26, 1992. Rehearing Denied July 17, 1992. George Trefry, Perkins Coie, Anchorage, for appellant. Glenn M. Gustafson, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee, The Alaska Public Utilities Com’n. Robin O. Breña, Law Offices of Robin O. Breña, Inc., Anchorage, for appellee Tesoro Alaska Petroleum Co. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

6843

42684

OPINION COMPTON, Justice. This appeal arises out of Cook Inlet Pipe Line Company's (CIPL) challenges to intrastate crude oil transportation tariffs ordered by the Alaska Public Utilities Commission (APUC) under the authority of Alaska's Pipeline Act. At the foundation of the dispute is the APUC's use of an "original cost method" for reviewing intrastate tariffs. CIPL notes that the Federal Energy Regulatory Commission (FERC), which regulates interstate tariffs, used a different rate setting method for the relevant time period. According to CIPL, use of these different methods resulted in intrastate tariff rates established by the APUC which were substantially below the interstate tariffs approved by the FERC. CIPL contends that the APUC tariff orders are preempted by federal law. CIPL also argues that the APUC's tariff setting methodology results in an unconstitutional taking of property and that the lower intrastate tariffs result in unjust discrimination in violation of the federal commerce clause. Additionally, CIPL maintains that the APUC abused its discretion in making several factual determinations. Finally, CIPL challenges the superior court's award of costs and attorney's fees. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND A clear understanding of the facts and the arguments of the parties in this case is possible only in conjunction with an understanding of the historical development of the methods government agencies have used to regulate utilities. This historical development is summarized in Farmers Union Central Exchange v. Federal Energy Regulatory Commission, (Farmers Union I) 584 F.2d 408, 412-17 (D.C.Cir.1978), cert. denied, 439 U.S. 995, 99 S.Ct. 596, 58 L.Ed.2d 669 (1978), rev'd after remand, 734 F.2d 1486 (D.C.Cir.1984), cert. denied, 469 U.S. 1034, 105 S.Ct. 507, 83 L.Ed.2d 398 (1988). In its early regulation of railroads, the Interstate Commerce Commission (ICC) utilized a "fair value" ratemaking method. See Smyth v. Ames, 169 U.S. 466, 546, 18 S.Ct. 418, 434, 42 L.Ed. 819 (1898). In the early 20th century, the United States Supreme Court approved the use of the fair value method for ratemaking in other public utility contexts. See e.g., Willcox v. Consolidated Gas Co. of New York, 212 U.S. 19, 50, 29 S.Ct. 192, 199, 53 L.Ed. 382 (1909). However, the fair value method lost favor after Justice Brandéis criticized it in Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission of Missouri, 262 U.S. 276, 289-312, 43 S.Ct. 544, 547-48, 67 L.Ed. 981 (1923) (Brandéis, J. concurring). Setting a just rate of return for a regulated utility under the "fair value" method required a determination of the reasonable value, at the time of ratemaking, of property dedicated to public use. Id. at 287, 43 S.Ct. at 546; Willcox, 212 U.S. at 50, 29 S.Ct. at 199. After a careful analysis of the "fair value" method, Justice Brandéis declared: The result, inherent in the rule itself, is arbitrary action on the part of the rate-regulating body. For the rule not only fails to furnish any applicable standard of judgment, but directs consideration of so many elements that almost any result may be justified. Missouri ex rel. Southwestern Bell, 262 U.S. at 296-98, 43 S.Ct. at 549-50. As an alternative to the "fair value" approach, Brandéis recommended that rates be determined based on the amount of "capital prudently invested in the utility." Id. at 310, 43 S.Ct. at 554. Some regulatory agencies, including the Federal Power Commission, implemented this suggested change and in 1944 the United States Supreme Court approved this "prudent investment" or what has become known as an "original cost" ratemaking method in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603-06, 64 S.Ct. 281, 288-89, 88 L.Ed. 333 (1944). The ICC abandoned the "fair value" rate-making method and adopted an "original cost" method for railroads. See Increased Freight Rates, 1951, 284 I.C.C. 589, 607-08 (1952). However, it retained a "fair value" approach in oil pipeline rate regulation. Petroleum Products, Williams Bros. Pipe Line Co., 355 I.C.C. 479, 481 (1976). In Farmers Union I, the United States Court of Appeals for the District of Columbia Circuit directed the newly formed Federal Energy Regulatory Commission (FERC) to reconsider the ICC's use of the valuation ratemaking method in reviewing oil pipeline tariffs. 584 F.2d at 422. The court stated: In sum, we are not persuaded by the Commission's conclusion that "consistency and fairness" dictate resurrection of the "fair value" method last used thirty years ago. To the extent that the method was wrongly grounded in the law at that time, it is no better off now. To the extent that it may have been rightly grounded in the economics of that day, the ICC has provided us with no reason to believe that three decades have not changed the situation. Id. at 418-19 (citation omitted). When the FERC adopted a fair value methodology on remand, the court concluded the FERC's decision lacked a reasoned basis because it failed to adequately consider alternative methods and remanded the case again with directions that the FERC reconsider again its ratemaking method. Farmers Union Cent. Exch. v. Fed. Energy Regulatory Comm'n, (Farmers Union II), 734 F.2d 1486, 1520, 1530 (D.C.Cir.1984), cert. denied, 469 U.S. 1034, 105 S.Ct. 507, 83 L.Ed.2d 398 (1984). The court noted that "the original cost methodology, a proven alternative, enjoys advantages that should not be underestimated." Id. at 1530. Further, the court called into question one of the FERC's justifications for continued use of a fair value ratemaking method. This justification was that an adoption of an original cost method would require the costly construction of "transitional" rate bases. Id. at 1517. The court stated: FERC failed to give a reasoned basis for its assumption that "[tjransitional rate bases would have to be constructed" at all. Regulated industries have no vested interest in any particular method of rate base calculation. See FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586, 62 S.Ct. 736, 743, 86 L.Ed. 1037 (1942). Accordingly, as FERC acknowledged, a switch to a new rate base formula would not disrupt protected pipeline property. So long as the resulting rates are reasonable, the oil pipeline companies should have no difficulty maintaining their financial integrity. We are therefore at a loss to understand FERC's trepidation about a change in its regulatory method. Id. at 1517-18. On remand, in a decision commonly known as Opinion No. 154-B, the FERC concluded that an original cost ratemaking methodology should be adopted. Williams Pipe Line Co., 31 FERC ¶ 61,377 (1985). However, it also adopted a "starting or transition rate base" for existing pipeline assets. Id. at ¶ 61,835. The FERC explained: [T]he Commission is concerned about the long reliance of pipeline investors on the previous rate base method and, as a result, has sought a middle ground that is fair in light of investor expectations but without perpetuating the serious flaws of the previous method_ The Commission believes [the transition rate base] formula, which is a middle ground between valuation and net depreciated original cost, is fair in view of pipeline investor reliance on a rate base which has been adjusted for inflation. Id. at ¶ 61,836. FERC's Opinion No. 154-B has not been judicially reviewed. During this period of fundamental change in regulatory ratemaking methods, the Cook Inlet Pipe Line System (pipeline) was developed. The pipeline was built in 1967 to transport crude oil from several offshore oil fields in Cook Inlet. The twenty-inch pipeline is over forty miles in length and extends from Granite Point to an offshore tanker loading platform near Drift River. The owners of the pipeline contributed $4 million in equity by purchasing stock. In order to obtain financing to construct the pipeline, a throughput agreement was assigned to a lender to secure a $36 million five-year loan. The owners' original plan was to convert the financing to a thirty-year term. However, in 1970 the owners adopted a policy of forgoing dividends in order to pay off debt because of decreased oil reserve estimates. The debt was retired in 1979. At the time operations commenced, CIPL became subject to federal regulation as a common carrier engaged in interstate commerce. The interstate tariffs CIPL established for oil transportation were subject to FERC review and approval. See Cook Inlet Pipe Line Co., 38 FERC ¶ 61,083 (1987) (FERC Approval of Settlement). CIPL filed interstate tariffs of $0.58 per barrel for 1981 and $0,915 per barrel for 1982. Concerns of the State of Alaska regarding these tariffs were resolved in an agreement with CIPL. Thereafter, the FERC approved the tariffs as part of an uncontested settlement. Id. CIPL concedes that because of intrastate crude oil deliveries which began in 1976, CIPL became subject to state regulation by the Alaska Pipeline Commission (APC) under the authority of the Alaska Pipeline Commission Act of 1972. Ch. 139, § 1, SLA 1972 (amended 1976, 1977). Over the next several years, CIPL gradually increased its intrastate tariffs. The present dispute arose when CIPL increased its intrastate tariff from $0.38 to $0.58 per barrel effective January 1, 1981. Twelve cents of the increase were included to pay for the future dismantling and restoration (D & R) of CIPL's facilities. Eight cents of the increase were included because of increased operating costs and reduced crude oil production. In December 1980 the APC suspended the $0.58 per barrel tariff and ordered an investigation, designated Docket No. P-80-5, to determine whether the tariff was just and reasonable. However, the APC permitted CIPL to collect the $0.58 tariff subject to refund. In July 1981 the APUC assumed responsibility for state regulation of intrastate pipeline tariffs and for the resolution of Docket No. P-80-5. Before Docket No. P-80-5 was resolved, CIPL filed a new intrastate tariff of $0,915 effective January 15, 1982. The D & R charge remained at twelve cents per barrel. In Docket No. P-82-1, the APUC suspended the new tariff and set a temporary tariff of $0.38, which was equal to the last rate approved by the APC. As before, CIPL was permitted to collect the new tariff subject to refund. In April 1982 the APUC consolidated the two pending dockets. In January 1985 after conducting a hearing and receiving briefs and other materials, the APUC entered an Order Prescribing Regulatory Methodology and Directing CIPL to File Revised Revenue Requirements (Methodology Order). In the Methodology Order, the APUC rejected CIPL's arguments that a "transition rate base" was necessary to ensure just and reasonable rates and adopted a rate base "computed by taking the original cost of the pipeline minus accumulated depreciation on a straight line basis as if the pipeline had been regulated on original cost from the beginning." In January 1987 the APUC entered an Order (Tariff Order) approving intrastate tariffs for 1981 and 1982 of $0.49 and $0.59 per barrel respectively, exclusive of D & R charges. These approved rates differed from the tariffs CIPL filed in 1981 and 1982 of $0.46 and $0,795 respectively, exclusive of D & R charges. In the Tariff Order, the APUC required CIPL to refund the excess amount it collected from intrastate commerce in 1982. In March 1987 CIPL moved for reconsideration of the Methodology Order and the Tariff Order in light of the FERC's Opinion No. 154-B, which had established a transition rate base. When the APUC denied CIPL's motion CIPL appealed to the superi- or court. While this appeal was proceeding, CIPL requested that the FERC declare that the intrastate tariffs set by the APUC violated sections 2 and 3(1) of the Interstate Commerce Act. CIPL eventually dropped its allegations with respect to section 3(1). Cook Inlet Pipe Line Co., 47 FERC ¶ 61,-057 at 61,172 (1989). The FERC ultimately determined that it had no power to alter intrastate rates under section 2. Cook In let Pipe Line Co., 47 FERC ¶ 61,393 at 62,306 (1989). Further, it stated that it did not "intend to suggest that the ICA requires absolute rate parity either for rates for similar interstate services or between rates for similar intra/inter state services." Id. Proceedings in the Alaska superior court culminated in July 1990 when Judge John Bosshard III affirmed the agency's Methodology Order and Tariff Order holding that the "APUC's authority to determine reasonable intrastate rates was not preempted by federal law; that APUC reasonably applied the original cost methodology for ratemaking; and that APUC set just and reasonable intrastate tariff rates for CIPL." CIPL appeals. II. STANDARD OF REVIEW In an appeal from a judgment of a superior court acting as an intermediate court of appeal, we give no deference to the superior court decision. Rather, we independently review the agency decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). This case involves questions of constitutional law, federal preemption and the scope of administrative authority. These are questions of law within the special expertise of the courts. In reviewing questions of law which do not involve agency expertise, we will substitute our judgment for that of the administrative agency. North Slope Borough v. LeResche, 581 P.2d 1112, 1115 (Alaska 1978). As we substitute our judgment, it is our duty "to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). However, we apply a reasonable basis standard of review to administrative determinations of complex issues involving agency expertise and specialized knowledge. Kelly v. Zamarello, 486 P.2d 906, 917 (Alaska 1971). The reasonable basis standard is especially appropriate where the legislature has delegated to the agency broad regulatory authority over an area in question. Therefore, it is the appropriate standard of review of the technical bases for APUC's establishment of a regulatory methodology and for its establishment of intrastate tariffs. See Homer Elec. Ass'n v. Alaska Pub. Util. Comm'n, 756 P.2d 874, 877 (Alaska 1988); Glacier State Tel. Co. v. Alaska Pub. Util. Comm'n, 724 P.2d 1187, 1190-92 (Alaska 1986). When applying the reasonable basis test, we give deference to the agency's determination "so long as it is reasonable, supported by the evidence in the record as a whole, and there is no abuse of discretion." Kodiak Western Alaska Airlines, Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d 1200, 1203 n. 7 (Alaska 1979). Our review of the superior court's award of attorney fees is limited to a determination of whether the court abused its discretion. Tesoro Alaska Petroleum, 746 P.2d at 907. III. DISCUSSION At the foundation of this case is a dispute about the extent of the APUC's power to set intrastate rates which differ from interstate rates approved by the FERC. We believe CIPL's theory of the case is flawed at this basic level and that CIPL mistakes the proper scope of the APUC's jurisdiction. Moreover, we believe CIPL mistakenly relies on the 1982 interstate rates approved by the FERC as a standard by which intrastate rates should be measured. The three legal issues CIPL presents are as follows: 1) whether the APUC's denial of a "transition rate base" constitutes an unconstitutional taking of property; 2) whether federal law preempts the APUC's Methodology and Tariff Orders; and 3) whether the Methodology and Tariff Orders create an undue burden on interstate commerce. A. Taking of Property. CIPL contends that the APUC should have adopted a "transitional rate base" to avoid a taking of property in violation of the constitutions of the State of Alaska and the United States. CIPL argues it has been treated in a manner which was characterized as unconstitutional in Duquesne Light Co. v. Barasch, 488 U.S. 299, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989). According to CIPL a taking of property occurred in two alternative ways. First, CIPL argues that the APUC's original cost methodology results in higher rates in the early years of a pipeline and lower rates in later years. CIPL contends that the APUC's scheme creates "fictional intrastate shippers" which "plainly results in a taking of CIPL's property rights to the extent of the higher, earlier rates which the APUC has falsely deemed CIPL to have received." Second, CIPL argues that the APUC's scheme reduced "the 1981 rate base from the FERC valuation of $41,911,-500 to $17,996,000 . [and reduced] the 1982 rate base from the FERC valuation of $43,359,200 to $17,996,000." CIPL contends this reduction of its rate base is a taking of property. We are not persuaded by CIPL's first takings arguments because the arguments focus on the ratemaking method rather than the effect of the method on return on investment. CIPL apparently overlooked the nature of the proper inquiry which the United States Supreme Court identified in Duquesne: "It is not the theory, but the impact of the rate order which counts." Hope, 320 US, at 602, 88 L Ed 333, 64 S Ct 281 [288]. The economic judgments required in rate proceedings are often hopelessly complex and do not admit of a single correct result. The Constitution is not designed to arbitrate these economic niceties. . The Constitution protects the utility from the net effect of the rate order on its property. Duquesne, 488 U.S. at 314, 109 S.Ct. at 619 (1989). Only one sentence out of CIPL's entire takings arguments addresses the economic effect of the APUC's regulatory scheme. CIPL complains that "the resulting 20.5<t reduced tariff for 1982 will substantially reduce 1982 earnings for CIPL." We have held that the State of Alaska may regulate industry in a manner which has a detrimental economic effect on a business without causing a taking of property which requires compensation. Alaska, De'p't of Natural Resources v. Arctic Slope Regional Corp., 834 P.2d 134 (Alaska, 1991). We recognize that the APUC has broad limits within which it may exercise its regulatory ratemaking power without running afoul of constitutional protection of private property. See Duquesne, 488 U.S. at 316, 109 S.Ct. at 620 (rejecting the notion that any particular ratemaking method is constitutionally required). Even if the APUC's regulatory scheme has a detrimental effect on CIPL's earnings, CIPL has made no showing that the scheme threatens CIPL's financial integrity. See Farmers Union II, 734 F.2d at 1517-18. We conclude that the APUC's application of an original cost rate methodology without a transition rate base does not constitute an unconstitutional taking of CIPL's property. CIPL's second argument that the APUC took its property when it reduced CIPL's "rate base" is wholly without merit. The "rate base" is a theoretical construct from which rates are derived. It is not "property." B. Federal Preemption. CIPL contends that "it cannot comply with both the Tariff Order and section 2" of the Interstate Commerce Act (ICA). CIPL contends that because of this conflict with federal law the Tariff Order is preempted. CIPL also argues that the APUC's "Tariff Order is preempted under the "filed rate doctrine" which requires the APUC to recognize FERC-approved rates." CIPL contends that this doctrine compels the APUC to set intrastate rates equal to the interstate rates approved by the FERC since the service is the same in either case. The Alaska legislature delegated to the APUC the authority to prescribe or require "just, fair and reasonable rates" for pipeline carriers operating in Alaska. AS 42.-06.140. Although the legislature recognized that federal regulators had jurisdiction over interstate commerce, the legislature intended to grant the APUC full power to regulate intrastate rates: "[njothing limits the powers of the commission set out in this chapter except to the extent they are preempted by federal law." AS 42.06.-245. This state legislation was enacted against a backdrop of well established federal law in the form of the ICA. The ICA was enacted to "secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions; [and] to prevent undue or unreasonable preferences to persons, corporations, or localities." Interstate Commerce Comm'n v. Baltimore & Ohio R.R., 145 U.S. 263, 276, 12 S.Ct. 844, 848, 36 L.Ed. 699 (1892). However, the United States Supreme Court has squarely held that as originally enacted the ICA was not intended to intrude on the power of the states to regulate intrastate commerce. Simpson v. Shepard, 230 U.S. 352, 418, 33 S.Ct. 729, 748, 57 L.Ed. 1511 (1913). In Simpson, the Court stated, "Congress carefully defined the scope of its regulation, and expressly provided that it was not to extend to purely intrastate traffic." Id. Congress did not undertake to say that the intrastate rates of interstate carriers should be reasonable, or to invest its administrative agency with authority to determine their reasonableness.... It cannot be supposed that Congress sought to accomplish by indirection that which it expressly disclaimed, or attempt ed to override the accustomed authority of the states without the provision of a substitute. On the contrary, the fixing of reasonable rates for intrastate transportation was left where it had been found; that is, with the states and the agencies created by the states to deal with that subject. Id. at 420-21, 33 S.Ct. at 749. Section 2 was part of the original ICA of 1887. 49 U.S.C.A. § 2 (West 1959). Therefore, we conclude that when it interpreted Congress' intent regarding the regulation of intrastate rates in Simpson, the Court rejected the notion that section 2 applied to intrastate rates. Because section 2 of the ICA was not intended to apply to intrastate rates, we reject CIPL's argument that section 2 requires the APUC to allow CIPL to set intrastate rates which match interstate rates. Our conclusion does not ignore the power of Congress over intrastate rates where necessary to prevent unjust discrimination which creates an undue burden on interstate commerce. We recognize that in a provision of the Transportation Act of February 28, 1920, now codified at 49 U.S.C.A. § 13(4), Congress granted the ICC power to fix intrastate rates "after full hearing" which demonstrates that the intrastate rates result in "unjust discrimination against, or undue burden on, interstate or foreign commerce." 49 U.S.C.A. § 13(4) (West 1959). CIPL expressly disclaims an argument based on section 13(4). It relies only on section 2. C. The Commerce Clause. Invoking the "dormant commerce clause," CIPL contends that on its face, the APUC Tariff Order "discriminates against interstate commerce because it provides a different tariff if the person using the pipeline does not take the oil out of the state." It argues that this court has aggressively struck down regulations which "result in intrastate economic protectionism." We find it unnecessary and improper to analyze CIPL's argument under a "dormant commerce clause" theory. While such an analysis may be proper in the absence of federal legislation, Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1972), it is unnecessary in the context of this case. In fact, the United States Supreme Court has declared that "a limitation [on state power over intrastate rates] may not be implied because of a dormant Federal power; that is, one which has not been exerted, but can only be found in the actual exercise of Federal control." Simpson v. Shepard, 230 U.S. 352, 417, 33 S.Ct. 729, 748, 57 L.Ed. 1511 (1913). In section 13(4) of the ICA Congress clearly provided for distinct roles of federal and state regulators and provided a remedy where intrastate rates are found to unjustly discriminate against interstate commerce. 49 U.S.C.A. § 13(4) (West 1959). The United States Supreme Court interpreted the effect of § 13(4) as follows: As to interstate regulation, the Commission is granted the broadest powers to prescribe rates and other transportation details. No such breadth of authority is granted to the Commission over purely intrastate rates. Neither § 13(4), nor any other congressional legislation, indicates a purpose to attempt wholly to deprive the states of their primary authority to regulate intra-state rates. Since the enactment of § 13(4), as before its enactment, a state's power over intrastate rates is exclusive up to the point where its action would bring about the prejudice or discrimination prohibited by that section. When this point — not always easy to mark — is reached, and not until then, can the Interstate Commerce Commission nullify a state-prescribed rate. North Carolina v. United States, 325 U.S. 507, 510-11, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760 (1945) (citations omitted). The Court also emphasized that the ICC was powerless to interfere with a state-prescribed rate "unless there are clear findings, supported by evidence, of each element essential to the exercise of that power by the Commission." Id. at 511, 65 S.Ct. at 1263. To our knowledge, there has never been a "full hearing" by any regulatory body which resulted in findings supporting a determination that the 1982 intrastate rates the APUC approved resulted in undue prejudice or unjust discrimination against interstate commerce. Therefore, we consider only whether the APUC's approval of an intrastate rate which was lower than the interstate rate, by itself, violates section 13(4) by causing "unjust discrimination against, or undue burden on, interstate . commerce." 49 U.S.C.A. § 13(4) (West 1959). We conclude that CIPL's contentions are without merit. Indeed, the federal courts have consistently found that a disparity between interstate rates and intrastate rates does not, by itself, equate to unjust discrimination against interstate commerce. North Carolina, 325 U.S. at 512-14, 65 S.Ct. at 1263-64. Rather, a finding of unjust discrimination must rest on specific findings based on substantial evidence that demonstrates, inter alia, that the intrastate rates are "less than compensatory or insufficient to cover the full cost of service," Id. at 515, 65 S.Ct. at 1265, or that they "were abnormally low and failed to contribute a fair share of overall revenue." Public Service Comm'n of Utah v. United States, 356 U.S. 421, 426, 78 S.Ct. 796, 799, 2 L.Ed.2d 886 (1958). CIPL has not developed any such evidence in this proceeding which supports its claim that interstate shippers suffered unfair prejudice or were otherwise commercially disadvantaged. It chose not to pursue an action before the FERC based on section 13(4), which would have required it to present such evidence. Rather, CIPL contends that as a matter of law, discrimination against interstate commerce is present where approved intrastate rates are $0.20 per barrel less than interstate rates and the service provided is identical. This argument rests on the unproven assumption that the interstate rates were "reasonable." Unlike CIPL's approved 1982 intrastate rates, which the APUC found to be just and reasonable following an exhaustive review, CIPL's 1982 interstate rates were approved without a reasonableness determination in an uncontested settlement. Cook Inlet Pipe Line Co., 38 FERC ¶ 61,083 (1989) (FERC Approval of Settlement). Because there has never been a determination by a regulatory body regarding whether CIPL's 1982 interstate rates were reasonable, this argument must fail. An uncontested settlement of the 1982 interstate rates does not establish that the rates are reasonable. See Arctic Slope Regional Corp. v. Fed. Energy Reg. Comm'n, 832 F.2d 158, 163-64 (D.C.Cir.1987), cert. denied, 488 U.S. 868, 109 S.Ct. 175, 102 L.Ed.2d 145 (1988) (holding that a FERC-approved settlement need not assure just and reasonable rates); see also Trans-Alaska Pipeline System, 35 F.E.R.C. ¶ 61,-425 at 61,983 n. 17 (noting that justness of rates cannot be implied from an approved settlement "since the settlement rates were never adjudicated to be just and reasonable"). We agree with Tesoro Alaska Petroleum Company's (Tesoro) assessment that: It simply cannot be that intrastate tariff rates may be set by an uncontested settlement of unreviewed interstate tariff rates before the FERC. If the uncontested settlement of interstate tariff rates controls similar intrastate tariff rates, then procedurally the FERC could mandate intrastate tariff rates in every state without even a review as to the reasonableness of either the interstate or the intrastate tariff rates. (Emphasis- in original). If courts found that unjust discrimination violative of the commerce clause resulted every time a state regulatory agency set an intrastate rate which was lower than the federally approved interstate rate for similar services, it would seem that Congress' efforts to respect state power over intrastate rates would have failed. Therefore, in conformity with federal authority, we reject the proposition that a difference between interstate and intrastate tariff rates, by itself, results in unjust discrimination against interstate commerce. D. Costs and Attorney's Fees. Under Alaska Appellate Rule 508, the superior court awarded the APUC attorney's fees in the amount of $20,000 and awarded Tesoro attorney's fees and costs in the amount of $54,911.67. CIPL argues that Tesoro's efforts in this matter were duplicative of the APUC's. Therefore, CIPL contends it was inequitable for the superior court to award Tesoro more than twice the fees awarded to the original party. CIPL does not question the percentage of Tesoro's actual fees awarded. CIPL also contends that the court improperly awarded fees of approximately $5,500 which Tesoro incurred prior to its intervention in superior court. Finally, CIPL argues that Tesoro failed to demonstrate why costs not covered by Rule 508(d) should be awarded. Where a trial court sits as an intermediate appellate tribunal, it has broad discretion to award a party reasonable attorney's fees under Alaska Appellate Rule 508(e). Rosen v. State Bd. of Public Accountancy, 689 P.2d 478, 482 (Alaska 1984). Although we have required an explanation where the court denied an award of fees under Rule 508(e) we have never required an appellate court to articulate its reasons for an award. Id. at 480. Based on our review, we cannot say that the attorney's fee award in this case is manifestly unreasonable. While it is true that Tesoro and the APUC address many of the same issues, we do not find Tesoro's efforts "completely duplicative." Tesoro's brief was helpful to this court. In the absence of any other challenge, we will not disturb the court's award of fees to Tesoro. We similarly reject CIPL's argument that the fee award was improper in light of Stepanov v. Homer Electric Ass'n, Inc., 814 P.2d 731 (Alaska 1991). In Stepanov, we held that "under Appellate Rule 508(e), attorney's fee awards, 'should . be limited to attorney's fees incurred in court, not those incurred in a prior administrative proceeding.' " 814 P.2d at 737 (quoting Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 501 (Alaska 1991)). Tesoro did not move to intervene in the appeal to the superior court until January 27, 1988. The actual fees upon which the award was based include fees from as early as May 18, 1987. However, the activity recorded for May 18, 1987 was "[rjesearch issues related to intervention at an appellate level when Tesoro was not a party to the administrative proceeding." While these fees were not "incurred in court" they were related to the appeal. Therefore, we conclude the trial court properly considered these fees in its award. We will not disturb the court's award of costs not expressly included in Rule 508(d). "The costs included in Appellate Rule 508(d) are not meant to preclude the trial court's exercise of its sound discretion in awarding additional costs in a particular case." State, Dep't of Educ. v. Nickerson, 711 P.2d 1165, 1170 (Alaska 1985). CIPL has provided us with no persuasive arguments that the court abused its discretion in its cost award. The judgment of the superior court which upheld the APUC's Methodology and Tariff Orders is AFFIRMED. . Responsibility for regulation of interstate oil pipeline rates was transferred from the ICC to the FERC pursuant to the Department of Energy Organization Act, Pub.L. No. 95-91, § 402(b), 91 Stat. 584 (1977). . In 1981 the responsibilities for intrastate oil pipeline regulation was transferred from the APC to the APUC and the Alaska Pipeline Commission Act was renamed the Pipeline Act. Ch. 110, § 1, 9, SLA 1981. The Pipeline Act is presently codified at AS 42.06.140-640. . These statutory provisions appear at 49 U.S.C.A. § 2, 3 (1959). In 1978 Congress repealed the relevant parts of the Interstate Commerce Act except as it relates to transportation of oil by pipeline. 49 U.S.C.A.App. § 2, 3, 13(4) (West Supp.1991). . After focusing on its three major legal arguments, CIPL briefly raises four technical issues which involve agency expertise. Based on our review of the record and the contested APUC orders we conclude that these objections are without merit. As noted above, we will defer to determinations involving agency expertise and specialized knowledge unless they are unreasonable or are unsupported by the record. Kodiak Western Alaska Airlines, 592 P.2d at 1203 n. 7. CIPL contends that it was inappropriate for the APUC to impute a hypothetical capital structure of 25% debt and 75% equity for ratemaking purposes where no debt existed in CIPL's actual capital structure. We find no error in the APUC's use of this hypothetical capital struc ture. Even CIPL's expert indicated that, based on information available at the time the APUC was setting rates, some debt would have been appropriate in CIPL's capital structure. Moreover, imputation of hypothetical capital structures is an established and widely used regulatory tool. "The practice of imputing a hypothetical amount of debt has been explicitly approved by the public utilities commissions or courts of at least twenty-two states and the District of Columbia." Communications Satellite Corp. v. F.C.C., 611 F.2d 883, 903-09 (D.C.Cir.1977) (approving a hypothetical 45% debt structure where the company's actual capital structure was 100% equity). CIPL also contends that the APUC's rate of return determination was not supported by substantial evidence, that the APUC erred in its calculation of CIPL's "allowance for funds used during construction" and that there was no reasonable basis for the method CIPL was required to use in accounting for certain major repairs to the pipeline. Our review of the record leaves us with the conclusion that the APUC's determinations in these areas are adequately supported by facts and have a reasonable basis in law. . Alaska's constitution protects private property as follows: "Private property shall not be taken or damaged for public use without just compensation." Alaska Const. art. I, § 18. Under the constitution of the United States, "private property [shall not] be taken for public use, without just compensation." U.S. Const. amend. V. We have previously held that because of the inclusion of the term "damaged," the Alaska Constitution affords the property owner broader protection than that conferred by the Fifth Amendment. DeLisio v. Alaska Superior Court, 740 P.2d 437, 439 n. 3 (Alaska 1987). However, the difference between Alaska's takings clause and the federal clause is irrelevant to this case. . Section 2 of the Interstate Commerce Act provides as follows: If any common carrier subject to the provisions of this chapter shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered or to be rendered, in the transportation of passengers or property, subject to the provisions of this chapter, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is prohibited and declared to be unlawful. 49 U.S.C.A. § 2 (West 1959). . CIPL also mentions section 3 of the ICA in it arguments. However, the United States Supreme Court has also considered and rejected an argument that section 3 was intended to impose federal control over intrastate rates. Chicago, Milwaukee & St. Paul Ry. Co. v. State Pub. Util. Comm'n of Illinois, 242 U.S. 333, 335-37, 37 S.Ct. 173, 174-75, 61 L.Ed. 341 (1917). . In its opening brief, CIPL notes that it "has not yet sought the Section 13(4) remedy. This remedy involves the FERC holding a hearing, making findings, and setting intrastate rates itself. CIPL has not sought this remedy, because the language of Section 2 is plain enough to obviate the need for FERC intervention." As discussed above, section 2 of the ICA does not help CIPL. Its remedy, if it has one, must be sought in a section 13(4) proceeding before the FERC. We decline CIPL's invitation to remand this proceeding for further fact finding regarding prejudice to interstate carriers. . CIPL also contends that the interplay between Section 2 of the ICA and the "filed rate doctrine" works to preempt an intrastate rate which differs from a FERC-approved interstate rate. This argument ignores Congress' careful preservation of the primary authority of states over intrastate rates. See North Carolina v. United States, 325 U.S. 507, 510-11, 65 S.Ct. 1260, 1263, 89 L.Ed. 1760 (1945). The filed rate doctrine requires states and their agencies to respect interstate rates set by the FERC, but does not require that interstate and intrastate rates be identical. See, e.g., Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 966, 106 S.Ct. 2349, 2357, 90 L.Ed.2d 943 (1986) (holding that a state must allow FERC-approved wholesale power rates as a reasonable cost when setting retail power rates). . The full text of section 13(4) is as follows: Whenever in any such investigation the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against, or undue burden on, interstate or foreign commerce (which the Commission may find without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier, or group or groups of carriers wholly within any State), which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, discrimination, or burden: Provided, That upon the filing of any petition authorized by the provisions of paragraph (3) of this section to be filed by the carrier concerned, the Commission shall forthwith institute an investigation as aforesaid into the lawfulness of such rate, fare, charge, classification, regulation, or practice (whether or not theretofore considered by any State agency or authority and without regard to the pendency before any State agency or authority of any proceeding relating thereto) and shall give special expedition to the hearing and decision therein. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding. 49 U.S.C.A. § 13(4) (West 1959). . Moreover, the settlement regarding the interstate rate included the following language: Pursuant to Rule 602 of the Commission's Rules of Practice and Procedure, this agreement is a negotiated settlement with respect to all matters covered herein and the Commission and the parties hereto shall not have accepted as precedent, or approved, accepted, agreed to, or consented to any principle of ratemaking, cost of service determination, allocation method, or rate design formula underlying, supposed to underlie, or advanced by any party with respect to any of the rates here at issue or terms of this agreement. The Commission's approval of this agreement shall not constitute approval of, or precedent regarding, any principle or issue in this proceeding. . Our opinion in United States v. RCA Alaska Communications, Inc., 597 P.2d 489 (Alaska 1979), does not require a different result. In that case we disapproved of the rate setting method by the APUC which likely would have resulted in "rate discrimination through hidden subsidies of some ratepayers by others." Id. at 504. We also concluded that "the APUC erred in considering the whole of RCAA's operations in its determination of whether interim rate relief should be granted_ [and] that separation of intrastate and interstate properties, expenses, and revenues is required for properly determining the adequacy of RCAA's intrastate rates." Id. at 499 (footnotes omitted). In this case CIPL makes no claim that the APUC failed to separate intrastate and interstate properties, expenses and revenues. CIPL claims only that the APUC is bound to accept a federally ap proved rate which was never determined to be reasonable.

10373040

L. Donald JOHNSON, Appellant, v. Sylvia M. JOHNSON, Appellee

Johnson v. Johnson

1992-07-17

No. S-4218

930

936

836 P.2d 930

836

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

L. Donald JOHNSON, Appellant, v. Sylvia M. JOHNSON, Appellee.

L. Donald JOHNSON, Appellant, v. Sylvia M. JOHNSON, Appellee. No. S-4218. Supreme Court of Alaska. July 17, 1992. Robert C. Erwin, Erwin & Smith, Anchorage, for appellant. Donna C. Willard, Law Offices of Donna C. Willard, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. . The statute provides in part that "[djuring the pendency of the [divorce] action, a spouse may, upon application and in appropriate circumstances, be awarded expenses, including ... reasonable spousal maintenance....” AS 25.24.-140(a).

2967

18110

OPINION COMPTON, Justice. Donald Johnson appeals a Final Decree of Divorce claiming the superior court erred in its award of interim spousal maintenance, its division of the property and its allocation of costs. We affirm in part and remand in part for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND Donald and Sylvia Johnson were married in 1946. Both were employed for a period of time. Sylvia's employment ended when she began raising children. In 1948 the family moved to Fairbanks. Donald worked for the Alaska Road Commission, the Army Engineers and later became a partner in a water delivery service. In 1951 the family returned to Iowa for one year where they assisted Sylvia's father with his farm. They returned to Alaska and after a brief stay in Fairbanks they moved to Kenai. In 1952, through a veterans' lottery, the family received a homestead on which they built the family residence. Sylvia has occupied the home from the time it was constructed until the present. Because of his occupations Donald spent relatively little time at home. In 1952 Sylvia and the Johnson's oldest son were involved in an automobile accident. The child died and Sylvia suffered severe injuries including permanent partial hearing loss. The $15,000 settlement from the accident was used to start Kenai Float Plane Service, Inc. in 1957. Donald held 51% of the stock while Sylvia held 49%. Donald flew the planes and Sylvia ran a refueling service and kept the books. Donald also worked as a carpenter and a commercial fisherman in the summers between 1955 and 1962. Sylvia assisted by setting and mending nets and by keeping records. As Kenai Float Plane Service became viable, the Johnsons became licensed guides and began conducting big game hunts. They developed Bear Lake Lodge on a parcel of land near Port Moller on the Alaska Peninsula. This facility began as a small cabin, but as the guiding operation flourished it evolved into a compound which included a main lodge of more than 5,000 square feet, a bunkhouse of more than 4,000 square feet, a substantial workshop and many other facilities. Donald flew clients to the lodge and guided them on hunts. Sylvia assisted by maintaining the books of the Bear Lake operation, cooking, cleaning and serving as an assistant guide. In 1971 Donald sold an interest in the Bear Lake operation to Gene Kulyan and the operation was incorporated. In 1985 Donald purchased Mr. Kulyan's interest and became the sole owner of Bear Lake Lodge, Inc. Throughout these changes in ownership, Sylvia continued to assist with the operation of the lodge. Meanwhile, the Johnsons constructed a hangar to serve Kenai Float Plane Service on part of the Kenai homestead. An airstrip and other improvements were added to the property. In 1983 Donald suffered a heart attack which left him unable to pilot commercial aircraft or guide hunters. Donald transferred his 51% interest in Kenai Float Plane Service to his son Warren. Since the transfer, Warren has operated the flight service. By 1986 the Johnsons had accumulated a large gun collection and a large number of animal trophies and skins. They also had acquired interests in land including property at Cold Bay, some aircraft, several antique cars, coins and other collectibles. Both Donald and Sylvia had received inheritances. Of the original 160 acre homestead, there remained about 120 acres. This acreage was composed of 102 acres on which the flying service facilities were located, 15 acres around the family residence, and a separate two and one half acre parcel. The circumstances which led to the divorce are in dispute. When Sylvia filed for divorce on February 6, 1986, she requested a restraining order against Donald to prevent harm to herself and to prevent dissipation of marital assets. The superior court entered a temporary restraining order, followed by a preliminary injunction, restricting Donald's access to the family residence and forbidding the parties from dissipating assets. Upon Sylvia's motion, Judge William Fuld entered an order in July 1986 awarding Sylvia interim spousal maintenance in the amount of $1,000 per month. The maintenance award remained in effect through the remainder of the divorce proceedings. The marriage was ended in August 1987. Issues of support and property division were reserved for trial. Because insufficient evidence existed concerning values, the trial court appointed a master to oversee property identification and valuation. After the trial court received the Master's Report and supplemental pleadings of the parties, it entered Findings of Fact and Conclusions of Law and a Final Decree of Divorce. On appeal, Donald' asserts that the trial court erred in its valuation and division of property, its assessment of costs and in its award of spousal maintenance. II. STANDARD OF REVIEW The determination of an award of interim spousal maintenance under AS 25.-24.140(a)(2), like the determination of an award for interim attorney's fees and costs under AS 25.24.140(a)(1), is committed to the sound discretion of the trial court. See Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975). We review an award of interim spousal maintenance for an abuse of discretion. Property divisions are reviewed to determine "whether the trial court abused the broad discretion given it under AS 25.24.160(a)(4)." Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). The trial court must use a three-step process in dividing property: First, the trial court is to determine what property is available for division; this determination is reviewed under an abuse of discretion standard "although it may involve legal determinations, which this court reviews independently." Id. Second, the trial court is to value the property; this is a factual inquiry to be reversed only if clearly erroneous. Id. Third, the trial court is to equitably allocate the property; this determination is reviewed applying an abuse of discretion standard and set aside only if clearly unjust. Id. Richmond v. Richmond, 779 P.2d 1211, 1213 (Alaska 1989). III. DISCUSSION A. The Award of Interim Spousal Maintenance. Judge Fuld entered an order awarding Sylvia interim spousal maintenance of $1,000 per month on July 7,1986. With the exception of one $900 payment, Donald failed to pay the maintenance. On Sylvia's motion, the delinquent maintenance through September 2, 1987, along with interest and costs, was reduced to judgment in the amount of $14,993.17 in December 1987. Sylvia executed against Donald's bank accounts and recovered most of the judgment. As part of the Final Decree of Divorce, Donald was ordered to pay the unpaid spousal maintenance which had accrued from October 2, 1987 through August 29, 1990. Donald contends that the award of "temporary alimony against a spouse who was permanently and totally disabled and unable to pay because he had no income" was clearly erroneous. Donald asserts that Sylvia had employment income of $12,000 to $14,500 per year and could have liquidated assets in the event she required further funds. Further, Donald contends that because the trial court did not articulate the basis for the maintenance award, the award was erroneous. We are hampered in our review of this issue because the record contains no findings in support of the interim maintenance order entered by Judge Fuld. We have often commented on the requirement in Alaska Civil Rule 52(a) that trial courts make findings in support of their decisions in non-jury cases. The trial court thus has a duty "by sufficiently detailed and explicit findings 'to give [this] court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision.' " Lang v. Lang, 741 P.2d 1193, 1195 (Alaska 1987) (quoting Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962)). See Ogard v. Ogard, 808 P.2d 815, 816 (Alaska 1991) (remanding where we were "unable to determine whether [an interim child support award was] appropriate because the court ha[d] not made findings of fact and conclusions of law in support of the award"); Lewis v. Lewis, 785 P.2d 550, 554 (Alaska 1990) (remanding where "the court provid ed no explanation for treating interim spousal maintenance as a distribution of marital property"). Without an understanding of the basis for the order, we cannot determine whether the trial court abused its discretion in awarding Sylvia interim spousal maintenance. Therefore, we must vacate the award and remand the issue for specific findings. In remanding the issue we note that the legislature has provided trial courts with little guidance regarding how they are to identify the "appropriate circumstances" which justify an interim spousal maintenance award. See AS 25.24.140(a). We make the following observations to assist in that regard. We have previously distinguished the purposes of spousal maintenance and the distribution of marital property. See Lewis v. Lewis, 785 P.2d 550, 553-54 (Alaska 1990). In conjunction with an interim award of attorney's fees and costs, an award of interim maintenance provides for reasonable and necessary living expenses while divorce litigation is pending and insures that neither spouse is disadvantaged in presenting their claims. See Cooper v. State, 638 P.2d 174, 181 (Alaska 1981). Because the purpose of interim spousal maintenance is different from the purpose of a property settlement, a court awarding interim spousal support need not consider all of the factors articulated in Merrill v. Merrill, 368 P.2d 546, 547-48 n. 6 (Alaska 1962). Rather, the primary factors which should be considered in awarding interim spousal maintenance are the relative economic circumstances and needs of the parties and the ability to pay the maintenance. See Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975). B. The Kenai Homestead. Without citing supporting authority, Donald argues that he should have been awarded a portion of the Kenai homestead. He contends that "basic fairness" requires that he should receive some portion of the homestead because it was "obtained by him solely as a result of a land lottery for veterans" and because it was "the base upon which he built his life." This court has frequently stated that a trial court's equitable allocation of property "is reviewed purely under the abuse of discretion standard and 'will not be disturbed unless it is clearly unjust.' " Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988) (quoting Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983)). When the trial court's property division is viewed as a whole, we cannot say that the award of the homestead to Sylvia is "clearly unjust" in light of the award to Donald of all the animal trophies and the entire Bear Lake Lodge operation. The manner in which the parties obtained the homestead and the notion that it was a base of operations do not require a different allocation. C. The Valuation of the Cold Bay Property. Donald contends that when the trial court valued the Cold Bay property at $30,-000 and awarded it to him, the court failed to recognize that Donald "still owed $17,-000 for the lot and that he had paid some $7,000 to $8,000 per year for the lot during the period after the Decree of Divorce and before the Final Judgment herein." Donald asserts that the court abused its discretion when it ignored his testimony regarding the amount of the debt and the payments. Donald's testimony at trial regarding the Cold Bay property was imprecise. Donald stated, "I paid the — I think it was $5,000 down. And then I've been paying roughly, I think,' $7,000 or $8,000 a year. That's on the interest and principal. And I just found out the other day, I believe I owe $17,000 or something on it yet." In contrast, Appendix "A" to Donald's Trial Brief values the Cold Bay lot at $30,000 without disclosing any related encumbrance. A trial court's determination of the value of property and the existence and amount of encumbrances is a factual inquiry and should be reversed only if clearly erroneous. Richmond v. Richmond, 779 P.2d 1211, 1213 (Alaska 1989). The court's findings regarding the valuation of the lot are supported by evidence. We will not say that the trial court "clearly erred" when it adopted one of Donald's representations over the other. D. The Cost of the Second Appraisal of Bear Lake Lodge. Donald contends that Sylvia incurred unnecessary costs by ordering a second appraisal of Bear Lake Lodge after he had already obtained an adequate appraisal which was ultimately accepted by the Master. Donald emphasizes that the trial court established that appraisal costs were to be split between the parties unless a party incurred unnecessary costs. Donald argues that the court erred when it failed to order Sylvia to pay the entire cost of the second appraisal. Donald's argument lacks merit because Donald has not persuasively demonstrated that the second appraisal was unnecessary. E. Other Issues. After Sylvia filed her appellee's brief, Donald filed a Motion to Amend Statement of Points on Appeal. In his memorandum in support of the motion, Donald conceded that two of the issues he argued in his brief could "be reasonably construed as being outside the original statement of points on appeal." These issues are: 1) the "trial court erred by its failure to assign a value of personal property award [sic] to Sylvia;" and 2) the "trial court erred in determining that the hangar on the homestead was the property of Kenai Float Plane Service." We denied Donald's motion to amend his Points on Appeal. Generally, we "will consider nothing but the points" in an appellant's statement of points on appeal. Alaska R.App.P. 210(e). Therefore, we will consider neither of these two issues which Donald concedes are outside the original points. Donald raises two issues in his Statement of Points on Appeal relating to valuation of collectible coins. However, he concedes in his reply brief that, by stipulation of the parties, the trial court was not to consider the coins. Donald also contends, in point number six, that the court erred in finding that Donald had taken a gun from the custody of Sylvia and requiring him to replace the gun. However, Donald does not argue this point in his briefs. Because Donald has abandoned the issue, we will not consider it. Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977). IV. CONCLUSION The trial court did not make findings of fact or conclusions of law explaining the basis of the award of interim spousal maintenance in the amount of $1,000 per month. Because we cannot determine the grounds on which the award rests, we cannot determine whether the court abused its discretion in entering the award. Therefore, the maintenance award must be VACATED and the case REMANDED for an explanation of the grounds for the award. In all other respects, the judgment of the court is AFFIRMED. . Sylvia disputes this characterization of Donald's financial condition. . We are not persuaded by Sylvia's contention that Donald has waived any claim of error regarding that portion of the interim spousal maintenance award that was reduced to judgment on December 2, 1987. The order of the trial court directing Donald to pay Sylvia maintenance during the pendency of the divorce proceeding was interlocutory in nature. The judgment supporting the maintenance order disposed of less than all of the claims in the action and resolution of the matter was subject to revision before entry of the Final Decree of Divorce. Unless certified in accordance with Alaska Civil Rule 54(b), such a judgment is not immediately appealable. Alaska R.Civ.P. 54(b). Donald properly raised the propriety of the maintenance award in his appeal from the Final Decree of Divorce. . Donald contends that his position is supported by language in Burgess v. Burgess, 710 P.2d 417, 421 & n. 6 (Alaska 1985). In Burgess, this court indicated that a party would be entitled to an offset for post-separation improvements to property unless the party invaded marital property to finance the improvements. Id. As Sylvia points out, Donald's April 16, 1986 Financial Declaration reveals no source from which he could have obtained such funds except marital property. If Donald invaded marital property to make payments on the Cold Bay lot, he should receive no offset. . Donald contends that his position is supported by Dixon v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987). Donald misreads Dixon. In Dixon, we concluded that the trial court did not abuse its discretion where it required one party to pay for more than half the cost of appraisals even though the court had previously ordered the costs split. Id. . Assuming that issue 2 is properly before the court, it is without merit. Donald does not contest the $102,000 valuation of the hangar adopted by the court. Neither does he dispute the fact that he transferred his interest in Kenai Float Plane Service, Inc. to his son Warren with the result that Warren and Sylvia own 51% and 49% of the corporation respectively. Rather, he argues that the court erroneously determined that the hangar on the Kenai homestead was a corporate asset and subtracted 51% of the value of the hangar from the marital estate. We note that there is evidence in the record which supports the court's finding that the hangar was the property of Kenai Float Plane Service, Inc. Beginning in 1971, the corporation listed the hangar as an asset and recognized depreciation of the hangar on its corporate tax schedules.

10583192

Leslie L. SPICER, Appellant, v. ANCHORAGE INDEPENDENT SCHOOL DISTRICT, Appellee

Spicer v. Anchorage Independent School District

1966-02-14

No. 576

995

998

410 P.2d 995

410

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Leslie L. SPICER, Appellant, v. ANCHORAGE INDEPENDENT SCHOOL DISTRICT, Appellee.

Leslie L. SPICER, Appellant, v. ANCHORAGE INDEPENDENT SCHOOL DISTRICT, Appellee. No. 576. Supreme Court of Alaska. Feb. 14, 1966. Joe P. Josephson and John R. Strachan, Josephson & Strachan, Anchorage, for appellant. Harold J. Butcher, Butcher & Biss, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

1779

10830

DIMOND, Justice. Appellant was employed by appellee as a school teacher for the 1960-61 and 1961-62 school years. In January 1962, appellant returned to appellee a "Teacher Intention" form that had been given to him, indicating thereon his desire to continue his employment for the 1962-63 school year. On March 14, 1962 an assistant superintendent of schools sent a letter to appellant stating, among other things, that appellant's contract for the 1962-63 school year had been approved by the school board the previous day. On May 23, 1962 the superintendent of schools wrote to appellant stating that the school board had rescinded its action of March 13 offering appellant employment as a teacher, and that appellant would not be issued a contract for the 1962-63 school year. Appellant brought this action seeking damages for breach of contract and a declaratory judgment to the effect that appellant was entitled to the benefits of the Teachers' Tenure Act of I960. The trial court granted appellee's motion for summary judgment and dismissed appellant's complaint. This appeal followed. The letter of March 14, 1962 from an assistant superintendent of schools to appellant read as follows: Mr. Leslie Spicer Central Junior High School Dear Mr. Spicer: At the last School Board meeting your contract for the school year 1962-63 was approved. May I be among the first to offer congratulations. Contracts will be sent following receipt of your acceptance. We would like to hear from you within ten days, accepting or rejecting this renomination. All appointments and reappointments are subject to meeting certification rules of the State Board of Education, and the local rules of the Anchorage School District Board of Education. We shall look forward to your rejoining our staff. Your step rating will be B-4+36 and your annual salary will be $7930. If you have questions, please don't hesitate to contact my office. Cordially yours, /S/ R. Mattoon Reinford L. Mattoon Assistant Superintendent for Instruction RLM :adf (Fill in blank with the word "accept" or "reject") I accept your contract offer for the school year 1962-63. /S/ Leslie L. Spicer (Your signature) Appellant contends that this letter amounted to an offer of a contract by the school board, that appellant accepted the offer when he filled in the blank at the end of the letter with the word "accept" and signed his name, that a binding contract then came into existence, and that the letter to appellant of May 23, 1962 from the superintendent of schools amounted to an unjustifiable repudiation of the contract which entitled appellant to recover damages from appellee. On the other hand, appellee contends that the letter of March 14, 1962 containing appellant's endorsement was at the best only a preliminary indication of future intentions on the part of the appellee and of appellant, and that a binding contract would not come into existence until the terms had been reduced to writing and the writing had been signed by appellant and two members of the school board, in accordance with certain regulations of the State Department of Education. We agree with appellee that there was no contract. At the time the above mentioned incident took place, the statute authorized school boards in the several school districts in the state to "hire teachers regularly qualified in accordance with the Department of Education rules and regulations and issue contracts to them for the ensuing school year ." The pertinent regulation that dealt with teachers' contracts was Section 75 of the Rules and Regulations of the State Board of Education, dated July 1, 1961. The introductory paragraph of Section 75 provided as follows: All teachers' and administrators' contracts for Alaska public schools must contain at least the following provisions and shall be executed on a standard contract form as established by the Commissioner of Education; provided that any school district may establish its own contract form which must contain at least the contract provisions set forth below and which must be submitted to the Commissioner of Education for his approval, which ap proval will be given in writing following approval by the Office of Attorney General and the Commissioner of Education : Then followed a list of provisions that were required to be contained in a teaching contract, such as the date, name of school and name of teacher employed, the date the salary was to start and the length of service in school days, the annual salary and the number of payments, a statement of United States citizenship, a non-communist oath, a statement authorizing deductions for the Teachers' Retirement System if the particular teacher is eligible, a provision showing clearly that the teacher must file a medical certificate with the superintendent of schools, and a provision for contract termination in certain instances. Finally, subsection (j) of Section 75 provided: (j) Contract made in duplicate and signed by at least two (2) members of the school board and the teacher. In the case of rural teachers, the signatures of the teacher and the Commissioner of Education are sufficient. An independent school district such as appellee, being a creature of statute, is bound by limitations on its actions imposed by statute or by rules and regulations adopted under statutory authority. Section 75 of the Rules and Regulations of the Department of Education makes it clear that where the employment of teachers is concerned, it is necessary that there be a written contract containing certain provisions and that the contract be signed by the teacher and by at least two members of the school board. If these requirements are not met, no contract exists because the school district has no authority to employ teachers except as prescribed by statute and regulation. The necessary requisites for the creation of an employment contract are absent here. The letter of March 14, 1962 from the assistant superintendent of schools to appellant did not amount to a contract because it did not contain all of the provisions required by Section 75 of the regulations, and because it was not executed by two members of the school board. Appellant's next contention has to do with the teachers' tenure provisions of a statute enacted in I960. That statute, in relevant part, provides as follows: School boards in the several school districts shall notify administrators and teachers of non-retention in writing postmarked or delivered on or before March 15. In the event that written notification of non-retention, together with a clear statement of cause including a bill of particulars for such 'non-retention, is not issued before March 15, the administrators' and teachers' contracts shall be continued for the ensuing school year in conformity with the state and local salary stipulations including any annual increments. Teachers and administrators who have not been employed for at least two school years in the school system or who are holders of temporary certificates are excluded from any rights under this Act. Appellant had teaching contracts with appellee for the school years 1960-61 and 1961-62. Appellant's contention is that when he was employed to teach for the second school year on May 23, 1961, the date that the 1961-62 contract was executed, he had been "employed for at least two school years in the school system", within the meaning of the statute above quoted, even though the actual teaching duties for the second year had not yet been performed. Appellant then goes on to argue that having been employed for two school years, he was entitled to notice of non-retention on or before March 15, 1962, and that since no such notice was given until May 23, 1962, his 1961-62 contract, under the 1960 tenure statute, was automatically continued for the succeeding school year. We do not construe the word "employed" as appellant would have us interpret it. That word, in its ordinary sense, signifies the legal relationship or status of employer and employee. The use in the 1960 act of the term "who has not been employed for at least two school years", by virtue of the past tense "has not been", means that a period of two years as a teacher must have expired before one becomes eligible for tenure benefits. In appellant's case the two year period did not expire until the end of the school year in May 1962. Thus, on March 15, 1962, the deadline date for giving notice of non-retention to tenure teachers, appellant was not entitled to the benefit of the tenure act, and the failure to give appellant notice of non-retention on or before that date did not cause appellant's 1961-62 contract to continue for another year. The judgments are affirmed. . SLA 1960, eh. 92, § 1 (codified as AS 14.20.130-14.20.160). . SLA 1960, ch. 92, § 1 (codified as AS 14.20.130). . State Board of Education, Rules and Regulations, § 75(a)-(i) (1961) [codified as 4 Alaska Adm.Code § 75 (1963)]. . AS 14.15.020. . Taggart v. School Dist. No. 1, 96 Or. 422, 188 P. 908, 911 (1920); see City of Oakland v. Oakland Unified School Dist., 138 Cal.App.2d 406, 291 P.2d 1001, 1003 (Dist.Ct.App.1956); 10 Mc-Quillin, Municipal Corporations § 29.21, at 241 (3d ed. 1950). . Each independent school district has a school board which is charged with the management and control of all school matters within the district. AS 14.15.-030. . Board of School Com'rs v. State ex rel. Wolfolk, 209 Ind. 498, 199 N.E. 569, 572 (1936); Taggart v. School Dist. No. 1, supra note 5; In re Hawkins, 129 Pa.Super. 453, 195 A. 761, 763-764 (1937); Ickes v. Costlow, 127 Pa.Super. 180, 193 A. 287, 289 (1937); Cope v. School Dist. No. 122, 149 Wash. 76, 270 P. 120, 122 (1928); Knotts v. Board of Educ., 113 W.Va. 56, 166 S.E. 703, 704 (1932); 16 McQuillin, Municipal Corporations § 46.13 (3d ed. rev. 1963). . SLA 1960, ch. 92, § 1 (codified as AS 14.20.130-14.20.160). . The 1961-62 teaching contract called for appellant to perform the duties of a teacher during the 1961-62 school year "beginning on or about the 30th day of August, 1961 for a total not to exceed 183 school days, which total shall include legal school holidays as set by law." . There were two judgments entered by the court below by different judges. The first was entered on January 5, 1965 and dismissed the first and second claims of appellant's complaint. The second judgment was entered on January 11, 1965 and dismissed the remaining claim of the complaint.

11760438

Stephen C. RUBRIGHT, Appellant, v. Adeline M. ARNOLD, Appellee

Rubright v. Arnold

1999-02-19

No. S-7010

580

588-596

973 P.2d 580

973

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Stephen C. RUBRIGHT, Appellant, v. Adeline M. ARNOLD, Appellee.

Stephen C. RUBRIGHT, Appellant, v. Adeline M. ARNOLD, Appellee. No. S-7010. Supreme Court of Alaska. Feb. 19, 1999. Rehearing Denied March 18, 1999. William T. Ford, Anchorage, for Appellant. Mary Louise Molenda, Ruskin & Molenda, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4542

27862

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Adeline Arnold sued Stephen Rubright, claiming that Stephen is the biological father of her son Christopher. She sought a judgment for past and future child support. The superior court entered a final judgment which found Stephen to be the father of Christopher. He was adjudged liable for child support arrearages of $94,578, including prejudgment interest, and attorney's fees of $11,578.80. Stephen was ordered to pay future child support of $658.18 per month. II. FACTS AND PROCEEDINGS Christopher was born in 1987. At that time Adeline was married to Thomas Arnold and listed him as Christopher's father on the birth certificate. Adeline and Thomas are the parents of two older children. A fourth child was born to Adeline in 1990. Thomas and Adeline dispute the parentage of this child, but their dispute is not an issue in this case. Thomas and Adeline separated in 1989. They had not divorced as of the date the final judgment was entered in this case. In 1991 Adeline's attorney contacted Stephen and communicated her claim that he is Christopher's biological father. In November 1991 Stephen paid Adeline $500 for child support. On September 3, 1992, Stephen signed an affidavit of paternity, certifying that he is the natural father of Christopher. Adeline filed the complaint in this action on October 6,1992. Stephen denied paternity and moved to dismiss the complaint, arguing that relief could not be granted without Thomas and Christopher both being made parties to the action. In response, the superior court ordered that the ease would be dismissed unless Thomas was made a party. Adeline amended her complaint, adding a claim against Thomas for divorce, custody of the other three children, and child support. On July 16, 1993, the trial court ordered Stephen to undergo blood testing to determine the paternity of Christopher. When Stephen did not comply, Adeline moved for an order to show cause why he should not be held in contempt. The court granted this motion on September 9, permitting Stephen to purge his contempt by submitting proof of blood testing within an additional ten days. Thomas prepared a pro per answer. Adeline's counsel received this on October 8. When it became apparent that it had not been filed in court, Adeline's counsel filed it on November 3. Thomas's answer did not respond to Adeline's allegation that Stephen is Christopher's father. On October 13 Stephen, who had not obeyed the trial court's order requiring blood testing, moved for a stay of proceedings until "a final decision has been made regarding Christopher Arnold's legitimacy." Adeline opposed, arguing that a stay was inappropriate since the objective of the blood testing was to determine Christopher's paternity. In response, Stephen argued that it was essential that the court appoint a guardian ad litem to represent Christopher's best interests. The trial court denied Stephen's motion for a stay and ordered the parties to appear at a hearing before a master to determine issues relating to whether Thomas should be estopped from denying paternity. The master's hearing was held on January 5, 1994. Adeline appeared, and Stephen appeared through counsel and was available for testimony telephonically. Thomas did not appear. The master reported that Adeline admitted that she falsely identified Thomas Arnold as Christopher's father at birth and put Mr. Arnold's name on the child's birth certificate. She added that she did not tell Mr. Arnold about her extramarital relationship with Stephen Rubright and did not tell Mr. Arnold until a year after Christopher's birth that he was not the father of that child. She said that after so informing Mr. Arnold he "backed away" from a relationship with Christopher and has twice visited two of the other Arnold children but not Christopher since the parties' separation in 1989. She also believes that Mr. Arnold had a paternity blood test performed in Seward, Alaska in approximately September of 1990, and that she understood the test result indicated that Mr. Arnold is not Christopher's father. Adeline again moved for an order to show cause, requesting sanctions for Stephen's failure to take a blood test. On June 10, 1994, the superior court granted the motion and ordered that Stephen would be adjudicated Christopher's biological father unless he submitted to paternity tests within thirty days. Stephen sought reconsideration of this order, indicating that he would decline to take the blood test on advice of counsel since the child was not illegitimate, and again requesting a guardian ad litem to represent Christopher. The motion for reconsideration was denied. Stephen then petitioned this court for review. His petition was denied. On November 18 Adeline moved for a declaration that Stephen is the legal father of Christopher. Stephen still had not taken a blood test. Adeline submitted blood-test results with her motion, which showed that Thomas is not Christopher's father. Stephen opposed the motion, again on the ground that Thomas is Christopher's presumed father. Again, Stephen asked that the court appoint a guardian ad litem for Christopher. On December 9, 1994, the court granted Adeline's motion for a declaration that Stephen is Christopher's legal father. The court then sua sponte dismissed Thomas as a party to the action. Stephen moved for reconsideration of the paternity order on the grounds that the blood test concerning Thomas was not authenticated as required in Mattox v. State, CSED, 875 P.2d 763 (Alaska 1994). This motion was denied. The court indicated that the order establish ing Stephen's paternity was both a sanction for Stephen's willful failure to submit to blood testing and a determination on the merits based primarily on Stephen's signed and notarized acknowledgment of paternity. The court also stated that Thomas's blood testing was not a basis for the court's order. Stephen sought to appeal the paternity order, and requested a certification of finality pursuant to Civil Rule 54(b). The court denied a Rule 54(b) certificate, finding that there was no reason to sever the issue of paternity from that of support, and noting that Stephen "can still submit to [blood] testing and challenge the court's finding [of paternity]." Subsequently, the amount of support Stephen owed was determined by motion practice, and arrearages were calculated from Christopher's date of birth. Finally, the court awarded attorney's fees to Adeline under Civil Rule 82. III. DISCUSSION A. Did the Court Err in Determining that Stephen Is the Father of the Child? Stephen's arguments on this point are that (1) it was inappropriate to sanction Stephen with an order declaring him to be Christopher's father because Thomas's paternity was never disestablished and this case is distinguishable from the case on which the superior court relied, Dade v. State, CSED, 725 P.2d 706 (Alaska 1986); (2) Adeline was estopped to deny paternity because she placed Thomas's name on the birth certificate and represented "for several years thereafter that Thomas Arnold was Christopher's father"; (3) Thomas should be es-topped from denying paternity because he was not properly made a party, and has never denied paternity or given sufficient evidence that he is not the father; and (4) Stephen's signing of the affidavit of paternity was without legal effect as a legitimating act under AS 25.20.050(a). We discuss each argument in turn, It is our view that the order establishing paternity was correct, both as a sanction and on the merits. As a sanction, the order was correct because Stephen willfully refused to take a blood test. He was first ordered to do so on July 16, 1993, the order was later twice repeated, and Stephen was given explicit notice in the order of June 10, 1994, that he would be adjudicated to be the biological father of Christopher if he did not schedule and submit to paternity testing within thirty days. Nonetheless, he at all times refused testing. In Dade, we upheld a sanction entered as an order establishing paternity where the putative father had arranged for a friend to submit blood for testing in response to a discoveiy order. 725 P.2d at 708. We noted that establishment orders are justified where the failure to comply with a discovery order is willful, in the sense of "a conscious intent to impede discovery." Id. (citing Hawes Firearms Co. v. Edwards, 634 P.2d 377, 378-79 (Alaska 1981)). We found the putative father's conduct in that case to be egregious since he attempted to provide false evidence to the court. Id. In the present case, the element of false evidence is missing. Stephen seeks to distinguish the instant case from Dade on this basis. While Dade is factually distinguishable, this case also presents a refusal to submit to blood testing which is willful, and in which the failure to submit can fairly be described as egregious in light of the several iterations of the court's order and the considered nature of Stephen's refusal. Stephen also argues that the sanctions were inappropriate because Christopher was born to Adeline while she was married to Thomas. Although Stephen does not develop this argument, he evidently means that in paternity suits with a presumptive father, the presumption must first be rebutted before discovery can take place requiring a blood test from the putative father. Stephen cites no precedent suggesting such mandatory bifurcation, and we see no reason for such a rule. The putative father's blood test may be relevant not only to establishing the paternity of the putative father, but also to rebutting the presumption of paternity in the presumed father. We thus reject both of Stephen's arguments concerning the establishment order as a sanction. Turning to the establishment order on the merits and treating it as the product of motion practice equivalent to a motion for summary judgment, the order must also be affirmed. To obtain summary judgment, the moving party must demonstrate the absence of genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage, 919 P.2d 759, 762 (Alaska 1996). The opponent to the motion need not demonstrate the existence of a genuine issue until the moving party makes a prima facie showing of its entitlement to judgment on the established facts. See id. Adeline made a prima facie showing that Stephen is the father of Christopher. She relied on the evidence which had already been submitted, including her sworn testimony before the master that Stephen is the father and the sworn acknowledgment of paternity which Stephen had signed. In response, Stephen filed no affidavits and no statement of genuine issues. His defense was legal rather than factual in nature. He stated: "[Stephen] does not know whether he is the biological father of Christopher Arnold, and at this point he is not interested in knowing. Christopher has a legal father and has had a legal father since he was born." There were, then, no genuine factual issues which would serve to prevent summary judgment. Turning to Stephen's legal arguments concerning the merits of the summary judgment adjudication, he first argues that Adeline was estopped to deny paternity because she named Thomas as the father when Christopher was born and represented for "several years" thereafter that Thomas was the child's father. The elements of equitable estoppel are (1) representation of a position by word or deed, (2) reasonable reliance thereon by another party, and (3) detriment or prejudice to that party. See K.E. v. J.W., 899 P.2d 133, 134 (Alaska 1995). Assuming, without deciding, that estoppel of the mother might under some circumstances be appropriate in a paternity case, this defense is legally insufficient under the circumstances of this case, for there is no claim that Adeline made a representation to Stephen, and similarly, no claim of detrimental reliance on the part of Stephen. Stephen's second argument is that Thomas should be estopped from denying paternity because he was not properly made a party, and has not denied paternity or given sufficient evidence that he is not the father. This defense also is insufficient. Thomas was named as a party in this case. He was served, and wrote an answer which did not respond to the allegation that he is not the child's father. Under Civil Rule 8(d), the allegation was therefore admitted. Stephen states that this answer "could easily be a complete fabrication by Adeline Arnold." However, this is merely counsel's argument. No effort was made to pursue this possibility through discovery or otherwise in the proceedings below. Further, even if Thomas had not been made a party, Stephen could still be liable. Thomas was not necessarily an indispensable party under Civil Rule 19(a), as it is difficult to see why his absence would prejudice Stephen. Stephen's third point is that the affidavit of paternity was without legal effect. Under AS 25.20.050(a), a child born out of wedlock may be legitimated by a putative father who acknowledges paternity in writing. Stephen's affidavit was signed on a form designed to accomplish legitimation under this section. Stephen argues that since Christopher was born to a married woman, he was not born "out of wedlock," and therefore could not be legitimated under AS 25.20.050(a). This point may or may not be correct depending on the meaning of the term "out of wedlock" as it is used in the statute. If any child born to a married woman is not born "out of wedlock" regardless of the biological father, then Stephen is correct. If, on the other hand, a child whose mother is married to someone other than the biological father is born "out of wedlock," Stephen may be incorrect. However, it is not necessary to resolve this question because Adeline did not seek to use the affidavit of paternity to establish Christopher's legitimacy under AS 25.20.050(a). Instead, the affidavit was simply used as an evidentiary admission. As such, its use was proper. See Alaska R. Evid. 801(d)(2). B. Did the Court Err in Refusing to Appoint a Guardian ad Litem for the Child? The superior court has broad discretion in deciding whether to appoint guardians ad litem. See Veazey v. Veazey, 560 P.2d 382, 385 (Alaska 1977). The court's decision appointing or declining to appoint a guardian ad litem will not be overturned absent an abuse of discretion. See W.E.W. v. D.A.M., 619 P.2d 1023, 1025 (Alaska 1980). Stephen argues that a guardian ad litem for the child should always be appointed in paternity actions involving a claim that the presumed father is not the biological father. He points to many jurisdictions which follow this rule. See Unif. Parentage Act § 9, 9B U.L.A. 312 (1987) ("The child shall be made a party to the action. If he is a minor he shall be represented by . a guardian ad litem_"); see also Danny R. Yeilleux, Annotation, Necessity or Propriety of Appointment of Independent Guardian of Child Who is Subject of Paternity Proceedings, 70 A.L.R.4th 1033 (1989). In W.E.W., a paternity action involving an unmarried mother, we held that the trial court did not err in refusing to appoint a guardian ad litem for the infant child. 619 P.2d at 1025. We concluded that the child's rights were adequately protected by the mother, who was suing the putative father for support. Id. We decline to adopt a per se rule which holds that a guardian ad litem must always be appointed in a paternity action involving a mother who was married at the time of the child's birth. Often, a guardian ad litem should be appointed, especially where there are issues such as custody, visitation, or inheritance rights on which the child's and the mother's interests may not coincide. See Howlett v. Hewlett, 890 P.2d 1125, 1127-28 (Alaska 1995). Here, however, no specific reason for appointment of a guardian ad litem is alleged. The 1994 master's hearing explored the question of the emotional attachment between Christopher and Thomas, and the only evidence that was presented was that Thomas had not visited Christopher — who was then six years old — for more than four years. Stephen does not seek visitation rights. Further, there is no sugges tion that Christopher is losing valuable inheritance rights as a result of the judgment. Finally, even if we were to conclude that a guardian ad litem should have been appointed in this proceeding, we would not reverse this case absent a showing by Stephen that the court's refusal to appoint a guardian ad litem affected Stephen's substantial rights. No such showing has been made. C. Did the CouH Err by Awarding Adeline Child Support from the Date of Christopher's Birth? Stephen argues that his child support obligation could only begin on December 10,1994, when the trial court found him to be Christopher's father, because Thomas was Christopher's legal father before that time. We reject this argument. In State, CSED v. Rios, 938 P.2d 1013, 1015 (Alaska 1997), it was argued that a biological parent's duty of support for a child born out of wedlock does not begin until a court has adjudicated paternity. We rejected this argument, holding instead that a parent's duty of support "commences at the date of the birth of the child." Id. Likewise, in Flanigin v. State, CSED, 946 P.2d 446, 450 (Alaska 1997), we recognized the rule that "child support arrearages are imposable by law from the date of a child's birth...." These cases control the present case. We also acknowledge that this ruling has a potential for unfairness in particular cases. If a biological father has no notice of his paternity until many years after the birth of a child, child support arrearages may be economically crushing. The father may have no means, except avoiding conception, of protecting himself. Large and unexpected liabilities can be the logical consequence of the rule that a biological father is liable for the support of a child from birth, especially when past arrearages are based on the child support guidelines set out in Civil Rule 90.3, rather than on reimbursement of past expenses. See Vachon v. Pugliese, 931 P.2d 371, 381-82 (Alaska 1996). However, these principles are well established in our case law. Further, many other jurisdictions hold that a father's liability for support extends from the birth of the child. See, e.g., W.M. v. D.S.C., 591 A.2d 837, 843 (D.C.1991); Department of Revenue v. Roe, 29 Mass.App.Ct. 967, 560 N.E.2d 1288, 1289 (1990); Wingate v. Estate of Ryan, 149 N.J. 227, 693 A.2d 457, 463 (1997); Kathy L.B. v. Patrick J.B., 179 W.Va. 655, 371 S.E.2d 583, 589 (1988). If relief from the potentially harsh consequences which we have noted herein is to be afforded, it must come from the legislative rather than the judicial forum. D. Did the Court Err in Awarding Attorney's Fees Pursuant to Civil Rule 82? With respect to this point, Stephen argues that the divorce exception to Civil Rule 82 should apply. He cites Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989), in which we held that the divorce exception, instead of Rule 82, applies to proceedings involving child custody and support between unmarried persons. Bergstrom was similar to a divorce case because the parties had lived together as husband and wife for many years and had two children. Id. at 1236. When they decided to separate, questions of custody and support arose just as they would have between married parties. It was therefore logical to apply the same rule concerning attorney's fees to Bergstrom as is applied to divorce cases. This case, however, does not resemble a divorce action. There exists here no reason to apply the divorce exception even as extended by Bergstrom. See B.J. v. J.D., 950 P.2d 113, 118-19 (Alaska 1997) (refusing to apply the Bergstrom divorce exception to a custody proceeding filed three years after the parties ended their relationship because it "does not bear the same close resemblance to an initial custody proceeding in a divorce action as did Bergstrom "). IV. CONCLUSION For the above reasons the judgment is AFFIRMED. . We note, however, that under the Uniform Parentage Act the presumption of paternity must first be rebutted before paternity by another man may be determined in the same action. Unif. Parentage Act § 6(a)(2), 9B U.L.A. 302 (1987). The uniform act has not been adopted in Alaska, and the bifurcation it mandates does not require that discovery be bifurcated. . The fact that Thomas is the presumed father of Christopher does not necessarily prevent summary judgment, adjudicating Stephen to be the father. We discussed the relationship between the presumption and summary judgment in In re J.B., 922 P.2d 878, 881 n. 4 (Alaska 1996): There is a presumption, rebuttable by clear and convincing evidence, that [the husband] is [the child's] father. The effect of this presumption was to shift to the State the burden of going forward with the presentation of evidence. This duplicates the burden that was already imposed on the State as the party moving for relief in the nature of summary judgment. As such, the presumption does not prevent such relief from being entered if, in consideration of all the evidence including the basic fact giving rise to the presumption — [the husband's] marriage to [the mother] at the time of [the child's] birth — it could not be reasonably concluded that [the husband] was [the child's] father. On this record a conclusion that [the husband] was [the child's] father would be unreasonable. The fact that the presumption is rebuttable only by clear and convincing evidence does not change this conclusion. If there were any evidence sufficient to raise a genuine issue of material fact on the question whether [the husband] was [the child's] father, such evidence would suffice to prevent relief in the nature of summary judgment regardless of the standard of proof to be used at trial. (Citations omitted.) . This is the sense in which we seem to have construed the term "out of wedlock" in State, CSED v. A.H., 880 P.2d 1048, 1050 (Alaska 1994). The Uniform Act on Paternity is in agreement: "A child born out of wedlock includes a child bom to a married woman by a man other than her husband." Unif. Act on Paternity § 1, 9B U.L.A. 350 (1987). . Since Christopher was not a party, an adjudication having the effect of disinheriting him would not necessarily be binding on him in any event. See, e.g., Ex parte Martin By and Through Sarris, 565 So.2d 1, 3 (Ala.1989). . Civil Rule 61 provides that any error or defect in a proceeding "which does not affect the substantial rights of the parties" is harmless error and is not a ground for vacating a judgment. While Stephen has argued that a guardian ad litem was necessary to protect the child's best interests, he has made no argument suggesting how his substantial interests might have been affected by the court's failure to appoint a guardian ad litem.

8412504

Kenneth DOMKE, Appellant, v. ALYESKA PIPELINE SERVICE CO., INC., Champion Technologies Inc., Larry (Lawrence) Disbrow, and Matt (Matthew) Knickrehm, Appellees

Domke v. Alyeska Pipeline Service Co.

2006-06-16

No. S-10885

295

308

137 P.3d 295

137

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:33:21.910300+00:00

CAP

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

Kenneth DOMKE, Appellant, v. ALYESKA PIPELINE SERVICE CO., INC., Champion Technologies Inc., Larry (Lawrence) Disbrow, and Matt (Matthew) Knickrehm, Appellees.

Kenneth DOMKE, Appellant, v. ALYESKA PIPELINE SERVICE CO., INC., Champion Technologies Inc., Larry (Lawrence) Disbrow, and Matt (Matthew) Knickrehm, Appellees. No. S-10885. Supreme Court of Alaska. June 16, 2006. Rehearing Denied July 26, 2006. Arthur S. Robinson and Eric Derleth, Robinson & Associates, Soldotna, for Appellant. Cynthia L. Ducey, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellees. Before: BRYNER, Chief Justice, MATTHEWS, FABE, and CARPENETI, Justices.

7857

50525

OPINION BRYNER, Chief Justice. I. INTRODUCTION In this appeal from a judgment on his claims for wrongful termination as an employee of Champion Technologies, Inc., Kenneth Domke seeks a new trial on damages, disputes the superior court's rulings on issues involving vicarious liability and allocation of fault, and challenges the jury's award on the defendants' counterclaims for conversion and unjust enrichment. We vacate the Judgment in part and remand for entry of a modified judgment, holding that Domke's motion for a judgment notwithstanding the verdict as to vicarious liability should have been granted; that further proceedings are necessary to determine whether Champion's counterclaims are time-barred; and that the jury should not have been allowed to allocate fault to Domke on his claims for tortious interference with his employment contract. II. FACTS AND PROCEEDINGS In March 1997, Champion Technologies, Inc., hired Kenneth Domke as a consultant "to advise . Champion personnel . with the objective of selling Champion's chemical products to oil, gas, pipeline and refinery operators." That October, Champion offered Domke at-will employment as project manager on BPO-218, a contract between Champion and Alyeska Pipeline Service Co., Inc., under which Champion provided corrosion inhibitors and engineering services for the Trans-Alaska Pipeline. Domke accepted this position. Although his salary and position had changed, an accounting error resulted in Domke receiving five additional paychecks from his original consulting position, covering the period from November 21 to March 18, 1998. Domke deposited four of the five over-payments, returning the last. Alyeska's steward for BPO-218 was Larry Disbrow, a senior corrosion engineer. Dealings between Disbrow and Domke quickly soured. Domke claimed that Disbrow falsified a corrosion report and, when Domke refused to sign the report, retaliated by "aggressively directing Domke's day-to-day work, assigning Domke impossible tasks, and becloming] angry on occasion, all of which became more frequent as time went on." But according to Alyeska, Domke was uncooperative, routinely missed work, and threatened to sue Disbrow for violating Alyeska's internal co-employment policy whenever Disbrow requested his help on contract-related tasks. In the summer of 1998, at least in part because of Domke and Disbrow's deteriorating relationship, Domke was demoted from his position as project manager by Matt Knickrehm, his Champion supervisor. On October 1 Disbrow sent Knickrehm an e-mail stating "Ken Domke and I have experienced a number of what I would categorize[ ] as communications problems." Disbrow went on to say:. In the best interest of the corrosion inhibitor program and our working relationship, I think that Champion should [elffect a change. Because of the coemployment issue, I cannot tell you what change to make. I hope that you can make a change that will improve the working relationship between myself, as the Alyeska steward of the Champion contract, and Champion Technologies, Inc. Knickrehm interpreted this as a request to remove Domke from the BPO-218 contract, but not a demand to terminate Domke's employment at Champion. Knickrehm suggested to Disbrow that Domke be allowed to continue to work on BPO-213 for ninety more days, while an alternative position was found for him within Champion. Disbrow asked that Domke be chaperoned while he continued to work on BPO-213 because Dis-brow was concerned about Domke's hostility. In late October 1998 Disbrow complained to Knickrehm that Domke had arrived to work in Valdez unchaperoned. Domke claims that he was ordered to go to Valdez alone and that when Disbrow found out that he was in Valdez, Disbrow "went ballistic again and demanded that I be pulled off the contract immediately." Domke was terminated on November 2, 1998. The parties dispute whether Disbrow and Alyeska requested or influenced Domke's ultimate termination by Champion. On January 20, 2000, Domke sued Champion, Alyeska, Disbrow and Knickrehm, alleging (1) that Alyeska and Disbrow had tortiously interfered with his Champion employment contract; (2) that Alyeska, Dis-brow, Champion and Knickrehm had conspired to interfere with the same contract; and (8) that Champion and Knickrehm breached the implied covenant of good faith and fair dealing in terminating his employment. Domke later amended his complaint to include allegations of breach of contract and of tortious retaliatory discharge in violation of public policy for whistleblowing. Champion counterclaimed on February 28, 2001, for conversion, assumpsit, unjust enrichment, and breach of contract against Domke for retaining the five overpayments he received after leaving his consulting position. Champion alleged that it only discovered that Domke intended to keep the overpay-ments after Domke brought suit. Domke denied these counterclaims and moved for summary judgment against Champion, arguing that its counterclaims were barred by the statute of limitations,. The court found that the counterclaims were compulsory and thus related back to the date of Champion's answer. The court also noted, in the alternative, that there was a genuine issue of material fact as to when Champion discovered all the elements of its cause of action. The court subsequently granted summary judgment motions to dismiss Domke's conspiracy claim as to Alyeska and his request for non-economic damages against Champion. On January 28, 2002, the defendants made an offer of judgment for $150,000 plus "prejudgment interest, costs calculated under Alaska Rule of Civil Procedure 79, and attorney's fees calculated pursuant to the schedule for contested with trial under Alaska Rule of Civil Procedure 82(b)(1)." Domke rejected this offer, and the case proceeded to a month-long trial beginning April 22, 2002. After hearing Domke's case, the court entered a directed verdict dismissing Domke's claims against Knickrehm, finding that Knickrehm could not be held personally liable because Domke had conceded that Knick-rehm acted at all times within the seope of his employment. The jury found that Dis-brow had interfered with Domke's employment contract, that Champion had breached the implied covenant of good faith and fair dealing as Domke's employer, but that Domke was thirty percent at fault for the interference with his contract. The jury awarded Domke $10,000 in economic and $5,600 in non-economic damages. It also found in favor of Champion's counterclaims for unjust enrichment and conversion, awarding Champion $19,600 in damages but reducing the award to reflect that Champion was forty percent at fault on the counterclaims. On post-trial motions, the court found that the pretrial offer of judgment exceeded the jury's verdict; accordingly, the court entered final judgment in favor of the defendants for $157,876 in attorney's fees and $54,148.16 in costs. Domke appeals. IH. DISCUSSION A. Post-Trial Motions After the jury returned its verdict, Domke moved for a new trial on the issue of damages and for a judgment notwithstanding the verdict to hold Alyeska vicariously liable for Disbrow's tortious interference. The court denied these motions, and Domke challenges these rulings on appeal. We consider each ruling in turn. 1. Motion for new trial on damages Domke initially asserts that the superior court erred by denying him a new trial on the issue of damages. A dissatisfied litigant may move for a new trial "in the interests of justice" under Alaska Civil Rule 59(2). Denial of a motion for a new trial lies in the sound discretion of the trial court. We will affirm a denial order entered under Rule 59(a2) if the evidence, viewed in the light most favorable to the non-moving party, provides any basis for the jury's decision. Conversely, we will reject a jury's award of damages and order a new trial only when the evidence supporting the jury's conclusion is "so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust." Here, the jury awarded Domke $10,000 in economic damages for Champion's breach of the implied covenant of good faith and fair dealing and Disbrow's interference with Domke's employment contract. Comparing this award to his monthly salary, Domke reasons that the jury awarded him only two months' back pay. He protests that the evi-denee fails to support such a small award for back pay because he was a valuable employee with a reasonable expectation of further employment. In Domke's view, then, the jury must have mistakenly "speculated that Domke's employment contract with Champion would have naturally expired on or about December 23, 1998 had Disbrow not interfered with this contract." Champion responds that the jury's award makes sense. It posits that "[the jury could have found [that] there was no unlawful interference [by Disbrow] prior to October 1, 1998, but that Disbrow interfered between October 1 and November 2, 1998, when Dis-brow's objection to Domke in Valdez resulted in early termination." Pointing to evidence that Champion had assigned Domke to work on BPO-218 only until the end of December 1998, and that it had agreed to employ him after that only if it found him another position, Champion argues that the jury could reasonably have found that Domke would not likely have worked beyond December in any event, so any interference only resulted in two months' lost wages. Champion's argument finds support in the record. The parties agreed that Domke was an at-will employee. On October 1, 1998 Disbrow sent Knickrehm an e-mail that Knickrehm interpreted as requesting that Domke be removed from the Alyeska contract. Knickrehm asked for ninety days to find another position within Champion for Domke. Knickrehm testified that he told Domke that Domke was being removed from the Alyeska project after ninety days, and that Champion would have to try and find another job for him after that. Domke himself acknowledged understanding that "at the end of the 90 days if Mr. Knickrehm could not find another position for me, that my job was over." Moreover, Knickrehm testified that he had located and offered Domke other available positions outside Alaska-including an international position in which Domke could have worked thirty days on and thirty days off-but that Domke had rejected all these offers, refusing to accept any positions outside Alaska. The jury further heard evidence that Disbrow had pressed Knickrehm to terminate Domke in late October 1998. As Domke put it, Disbrow "went ballistic again and demanded that I be pulled off the contract immediately." Domke was terminated on November 2, 1998. Based on this evidence, it would not have been irrational for the jury to find that Domke was unfairly fired in early November but that his employment with Champion likely would have expired at the end of December 1998 in any event because Champion might not have been able to find a new job that met his satisfaction. Because the evidence here was not "so completely lacking or slight and unconvincing as to make the verdict plainly unreasonable and unjust," we decline to reverse the superior court's order denying a new trial on the damages issue. 2. Motion for JNOV on vicarious liability The jury found that Disbrow interfered with Domke's contract but that Disbrow's employer, Alyeska, was not vicariously liable. Domke argues that the trial court erred by refusing to grant a judgment notwithstanding the verdict (JNOV) that would have found Alyeska vicariously liable for Disbrow's tortious interference. In response, Alyeska initially contends that Domke failed to move for a directed verdict as to Alyeska's vicarious liability, so he waived his right to request a judgment notwithstanding the verdict. But the record fails to support this contention. After presenting his case at trial, Domke moved for a directed verdict establishing both Disbrow's and Alyeska's liability on the tortious interference claim. The trial court responded that, in its view, there were material fact issues for the jury to resolve. The court invited Domke to argue the point and gave him two minutes to do so, but it directed the subject of the argument to the question whether Alyeska and Disbrow were justified in their actions toward Domke. Given the limited focus of the argument invited by the court, we think that it would be unrealistic to view Domke's failure to expressly mention vicarious liability as a waiver of the point. Under the cireamstances, his general motion for a directed verdict establishing Alyeska's liability can best be seen as encompassing all reasonably apparent theories of liability, including the theory that the company was vicariously liable as Disbrow's employer. Accordingly, we conclude that Domke adequately preserved this question to raise it in his post-trial motion for a JNOV. Alyeska also contends that reasonable jurors could have differed as to whether Disbrow was acting within the seope of his employment when he interfered with Domke's employment contract. "We review the denial of a judgment notwithstanding the verdict only 'to determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment of the facts'" Under Alaska law, employers are ordinarily held vicariously liable for acts performed by their employees within the scope of their employment. We apply "a flexible, multi-factored test" to determine whether an employee has acted in the scope of employment in a given case, looking to relevant factors listed in § 228 of the Restatement (Second) of Agency: (1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (©) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpected by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Applying these factors here, we see nothing in the evidence that might have enabled reasonable jurors to conclude that Dis-brow's interference with Domke occurred outside the seope of his employment with Alyeska. Disbrow was the contract steward of BPO-213 for Alyeska. Part of his job description, as outlined in section 29 of the BPO, was to review and confirm Champion's performance under the contract. Thus, reviewing and commenting on Domke's performance with respect to BPO-218 fell squarely within the job that Disbrow was authorized to perform. Disbrow testified that he wanted Domke removed from the Champion contract for several reasons. These reasons included Domke's lack of performance, his absenteeism, continuing communication problems, and Domke's attitude. Moreover, Disbrow testified that before he sent Knickrehm an e-mail requesting that Domke be removed from the employment contract, he cleared the e-mail with his own boss at Alyeska, Eldon Johnson. These events demonstrate that Disbrow acted within the time and space limits of his employment. And even if the jury accepted Domke's theory that Disbrow's actions were motivated by his belief that Domke was a whistleblower, those actions would at least in part have been meant to serve what Disbrow saw as being in Alyeska's best interests. Even when we view the evidence in the light most favorable to Alyeska, then, we conclude that the record compels a finding that Alyeska was vicariously liable for Dis-brow's tortious interference with Domke's contract. Because Domke was entitled to a JNOV establishing Alyeska's liability for Dis-brow's conduct, we must remand with directions to amend the judgment to reflect this conclusion. B. Counterclaims Domke next argues that Champion's counterclaims for conversion and unjust enrichment were barred by the statute of limitations. In denying Domke's motion for summary judgment on this point, the superior court ruled that the counterclaims were compulsory, so they related back to the date of Champion's answer and were therefore timely. The court alternatively ruled that there were material issues of fact regarding when Champion was on notice that Domke intended to keep the overpayments-an element of Champion's claims. Domke returned to the timeliness question at the end of the trial, asking the court to instruct the jury on the statute-of-limitations issue. The court declined to give his proposed instructions. Domke now challenges these rulings. A compulsory counterclaim relates back to the date of a party's answer; a permissive counterclaim does not. Under Alaska Civil Rule 18(a), a claim is compulsory when 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." We have identified the following factors as helpful in construing the phrase "transaction or occurrence": "whether the facts are related in time, space, origin, or motivation; whether they form a convenient trial unit; and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Alternate ways of determining whether two claims arise from the same "transaction or occurrence" include looking for a "logical relationship" between the claims, or whether the claims "would involve similar testimony . the same exhibits, and the same parties." Domke asserts that, since the overpay-ments were the product of his consulting contract rather than the employment contract that resulted in his claims against Champion, Champion's counterclaims did not arise from the same "transaction or occurrence" as his own. He insists that there is no "factual overlap" between the claims because the overpayments occurred roughly a year before Champion breached the implied covenant and because there was no relationship or connection between the two events. Champion responds that any counterclaims arising out of the employment relationship between Champion and Domke would be compulsory because defense of Domke's claims and prosecution of its counterclaims would require the same witnesses and evidence. It argues that Domke's breach of contract claims and its own counterclaims arise from the same "transaction or occurrence" because they could only be decided by reference to the terms of Domke's employ ment contract. It asserts that onee Domke placed his own "work performance, work character and credibility at issue," evidence that he wrongfully kept the overpayments was relevant in rebuttal. Also, it insists that the facts underlying its counterclaims would necessarily be introduced under the after-acquired evidence doctrine. In Wells v. Noey, we held that an action to declare a tax deed invalid was compulsory when the validity of the tax deed was a necessary element in an earlier action between the parties to quiet title by adverse possession. We concluded that the interdependence of the two claims satisfied the logical relationship test. We noted that the claims shared the same evidentiary basis, and that proving the deed valid had been necessary to establish adverse possession in the earlier suit between the parties; in our view, these factors established that the action to declare the tax deed invalid was compulsory. We find no comparable interrelation, ship here between Champion's counterclaims and Domke's claim. Champion's evidentiary argument does establish some similarity, but the similarity of evidence between the two suits is not by itself controlling. While the same parties and witnesses might appear in both actions, Champion's ability to recover the value of the consultant overpayments did not depend on the success or failure of Domke's claims. Conversely, a decision on Champion's counterclaims was not necessary to the result in Domke's suit. If Domke had pressed suit immediately and reached judgment before Champion discovered the over-payments, Champion would not have been barred under Civil Rule 13(a) from asserting its claims in a separate action. Furthermore there is no logical relationship between the claims. In Ellingstad v. State, Department of Natural Resources, we found no logical relationship between claims that arose from the same land contracts but "involvied] en-tively different legal questions." While we can imagine many instances where counterclaims of conversion and unjust enrichment could have a logical relation to an employee's claims arising from breach of an employment contract by the employer, that is not the case here. Because we conclude that Champion's counterclaims were permissive rather than compulsory, we must next consider Domke's argument that the counterclaims were barred by the statute of limitations. The trial court did not squarely address this point. Instead, in denying Domke's motion to dismiss the counterclaims on summary judgment, the court found that material questions of fact remained in dispute regarding when Champion had notice of its counterclaims. Because of this unresolved factual dispute, the court also saw no need at that point to address Champion's alternative argument that Domke should be equitably estopped from asserting his statute of limitations defense. But as noted above, these rulings were based on the erroneous premise that Champion's counterclaims were compulsory and related back to the date that Champion filed its answer. When Domke attempted to return to these issues at trial by requesting a jury instruction on the statute-of-limitations issue, the superior court denied his motion on the ground that his proposed jury instruction was untimely. The court thus submitted the case to the jury, and eventually entered judgment, with the disputed statute-of-limitations issues still unresolved. Although we recognize that Domke admittedly filed his proposed jury instruction late, and that the instruction was properly rejected on that ground, the unresolved statute-of-limitations issues addressed in that instruction raised preliminary questions of fact that did not need to be referred to the jury and could have been properly decided by the trial court itself. Accordingly, the court's rejection of Domke's late jury instruction did not eliminate the need to address these unresolved issues. For this reason, Domke's procedural lapse in submitting the proposed instruction late cannot be viewed as an abandonment of the underlying legal point the instruction addressed. Given these circumstances, we hold that the trial court's reliance on the mistaken premise that the counterclaims were mandatory requires us to remand this case for further consideration of the unresolved statute-oflimitations issues: when Champion had reasonable notice of Domke's conversion and whether the doctrine of equitable estop-pel applies to the counterclaims. On remand, the superior court should resolve disputed factual issues concerning these points by considering all relevant evidence in the record, including evidence presented in connection with Domke's summary judgment motion and evidence presented during the trial. If the court finds that Champion's counterclaims were barred in whole or in part by the statute of limitations, it should disallow the jury's award on the counterclaims to the extent necessary to conform with its ruling. C. Severance of Champion's Counterclaims Domke separately argues that the court erred by denying his motion to sever the trial of the counterclaims from the trial of his complaint. He asserts that allowing Champion to present its counterclaims unfairly tainted the jury's perception of his case, and he suggests that Champion's pursuit of its counterclaims was motivated more from a desire to cast him in a negative light than from belief in their merits. Under Alaska Civil Rule 42(b), separate trials are appropriate to ensure "convenience or to avoid prejudice," or when "conducive to expedition and economy." The trial court's decision to deny a severance motion is reviewed for abuse of discretion. We have held that a separate trial on a defendant's counterclaims is unnecessary when the counterclaims share the same issues of fact as the defendant's affirmative defenses. When that is the case, the plaintiff suffers no prejudice other than the unavoidable prejudice caused by the defendant's assertion of the factual basis of the affirmative defenses, so trying the counterclaims with the plaintiffs case in chief is "conducive to expedition and economy." Here, Champion asserted an after-acquired evidence defense to Domke's retaliatory discharge claim. Under this theory, it claimed that it would have fired Domke once it discovered that he had kept the consultant overpayments. Asserting this defense required that Champion present the same evidence that it required for its counterclaims: that Domke had wrongfully retained the overpayments. Indeed, before trial, in response to Dorake's complaints that the counterclaims would unfairly put his character at issue, Champion offered to stipulate that the same facts underlay the counterclaims and its affirmative defenses. Because Domke asserts no concrete reason that presentation of the counterclaims prejudiced his case beyond the damage that would have been done by Champion's prosecution of its affirmative defense, we find that the trial court did not err by denying his motion. D. Champion's After-Acquired Evidence Defense In Brogdon v. City of Klawock, we recognized that after-acquired evidence of an employee's wrongdoing may be introduced in employment cases. But our discussion of the after-acquired evidence doctrine was brief. We did not, for example, decide what limits the trial court should place on the introduction of post-termination justifications, or whether "a new cause for termination merely serves to limit damages or eliminates entirely the right to damages." In its answer to Domke's complaint, Champion asserted that "[the doctrine of after-acquired evidence bars plaintiff's recovery in whole or in part." The gist of Champion's defense was that it would have terminated Domke once it discovered that he kept and cashed the consultant overpayments. The trial court declined to dismiss this defense at summary judgment, finding that "issues of fact exist as to who knew about the checks, what was known about these checks. Further, issues of fact exist as to whether Domke would have been terminated if Champion had known about the alleged improper retention of these checks." An instruction on Champion's defense was submitted to the jury. The jury found that Domke's wrongful retention of the consultant overpayments did not bar him from recovery for Champion's breach of the implied covenant of good faith and fair dealing. Domke nonetheless argues on appeal that the court erred when it refused to grant summary judgment on Champion's defense. Domke asserts that he demonstrated in his summary judgment motion that Champion was aware of the overpayments-and that Domke had cashed the checks-during the course of his employment. According to Domke, this means that the evidence relating to the consultant overpayments was not "after-acquired" and that Champion's defense should have been dismissed at summary judgment. But Domke fails to show that he was prejudiced by the trial court's decision. The jury ultimately found in Domke's favor on Champion's defense. The only potential source of prejudice lies in the evidence of Domke's misconduct with regard to the overpayments that was introduced to support Champion's theory. Domke insists that the overpay ments were known to Champion during his employment, and he suggests that, since Champion did not terminate him after gaining this knowledge, the fact of the overpay ments is completely irrelevant to the issues raised by his claims. Yet even if Champion had learned of the overpayments while Domke was still working, and even if it knew that he intended to keep them, this evidence still would have been admissible to rebut Domke's evidence of his own good character and reasonable expectation of long-term employment. At most, then, allowing the jury to hear Champion's after-acquired-evidence defense amounted to harmless error. E. Special Verdict on Fault Allocation Under AS 09.17.080, the court must instruct the jury to apportion fault among all parties in a civil action, including "each claimant, defendant, third-party defendant, person who has been released from liability, or other person...." According to AS 09.17.900, " 'fault' . includes acts or omissions that are in any measure negligent, reckless, or intentional toward the person or property of the actor or others, or that subject a person to strict tort liability." During the trial, the superior court ruled that these fault-allocation provisions did not apply to Domke's claim of tortious interference with his employment contract. The court nonetheless thought that this issue was close, acknowledging that "in this case there may be a real legitimate dispute in the law." To avoid the need for a new trial if its ruling was reversed on appeal, the court announced, just before submitting the case to the jury, that it would preserve the record by submitting a special verdict form allowing the jury to allocate fault on the tortious interference claim. After the jury returned a verdict finding Domke thirty percent at fault on that claim, the court changed its ruling on the fault-allocation requirement, held it applicable, and calculated the final judgment by using the jury's finding on comparative fault. Domke now argues that the trial court erred in two respects. First, he contends, a plaintiff cannot share responsibility for a defendant's intentional tort against the plaintiff. Domke reasons that the lack-of-justification element of a tortious interference claim essentially rules out comparative fault, making the concept redundant and illogical in the context of such claims: If the plaintiff is at fault, Domke posits, then the defendant's interference would be justified. Second, Domke argues, the last-minute timing of the court's decision to instruct on allocation prejudiced him by precluding any opportunity to argue the issue to the jury. Champion responds that the trial court did not have discretion to exempt Domke from fault allocation, because the allocation statute is mandatory. Champion also insists that Domke waived any claim of prejudice resulting from the timing of the court's decision because he "did not assert a claim of prejudice after closing statements, seek additional time to supplement his closing, or provide a record of how his closing may have been altered based on the trial court's ruling." But the record demonstrates that Domke adequately preserved his argument based on timing. And under the cireum- stances at issue here, we hold that it was an abuse of discretion to announce for the first time after counsel had made their closing arguments that the allocation issue would go to the jury. The court submitted the disputed special verdict form on fault allocation without allowing either party the benefit of closing arguments or explanatory jury instructions. This prejudiced both sides by depriving them of any opportunity to discuss the issue of allocation in their arguments to the jury. To determine an appropriate remedy for the prejudice stemming from the late instruction, we must next consider whether the allocation statute required fault to be allocated here. If so, a retrial on the issue of allocation would be necessary; if not, the proper remedy would simply be to disregard the jury's allocation. Relying on AS 09.17.900, which defines "fault" to include all "acts or omissions that are in any measure negligent, reckless, or intentional," Champion argues that "[the facts in this case permitted the jury to reasonably conclude Domke's failure to perform assigned tasks in a professional manner or his unprofessional conduct negligently placed him in danger of being transferred and/or terminated while also concluding that when Disbrow sought Domke's early termination, it was due to Disbrow's unjustified motives." In Champion's view, then, Domke was negligent through his actions of being "unprofessional," which combined with Dis-brow's intentional interference to cause Domke's firing. But Champion's argument begs the question of the role played by the element of justification in a cause of action for tortious interference with a third party's contract. Here, as we have already discussed, Disbrow was found liable for tortious interference based on conduct occurring in the course of working as an employee of Alyeska on a contract with Champion. If Domke's allegedly unprofessional conduct impaired Dis-brow in performing his job or damaged Alyeska's business interests, then Disbrow would have been justified in seeking to have Domke disciplined or discharged by Champion; and this justification would have completely absolved him from being held liable for interfering in Domke's employment. Conversely, if Domke's lack of professionalism was so unrelated to Disbrow's actions that it gave him no justification for interfering with Domke's employment, then this lack of a causal nexus would preclude treating Domke's unprofessional conduct as a legal cause of his own firing. Any "negligence" on his part would have played no direct and significant role in causing the specific harm at issue-the interference that prompted his firing. In context, then, the lack-of-justification element played two simultaneous roles: it established actionable misconduct by Dis-brow and ruled out legally relevant contributory causation by Domke. Alaska's statutory provision governing allocation of fault reinforces this view of the tortious conduct at issue here. Though AS 09.17.080 potentially encompasses a broad array of causes of actions, the statute specifically requires fault to be allocated only in "actions involving fault of more than one person"; and in such cases it specifies that in allocating fault the jury must "consider both the nature of the conduct of each person at fault, and the extent of the causal relation between the conduct and the damages claimed." Here, the "nature" of the cause of action at issue-its established definition-required Disbrow's wnjustified interference to be the but-for cause of Domke's firing; at the same time, Disbrow's lack of justification negated the existence of any legally relevant "causal relation" between unprofessional or otherwise inappropriate conduct by Domke and the specific "damages claimed" in his action against Disbrow. Put simply: The definition of the cause of action does not allow a finding that the harm Disbrow caused was partly justified. And Domke neither owed nor breached any identifiable legal duty to exercise due care to prevent unjustified acts of tortious interference by third parties like Disbrow. Notably, Champion cites no authority to support its claim that an employee's general "unprofessionalism" or abrasiveness can provide an actionable basis for allocating liability based on contributory fault on a claim against a third party for tortious interference with the employee's employment contract; nor does Champion cite any authority applying comparative fault under similar cireum-stances. Under these cireumstances we decline to hold that AS 09.17.080 required the superior court to give an instruction allowing the jury to consider allocating fault to Domke on his claim for tortious interference. Because we hold that an instruction on allocation of fault was not called for here, we conclude that the prejudice resulting from the last-minute instruction does not require a retrial to allow reallocation of fault; instead, the proper remedy on remand will be to strike the thirty-percent allocation of fault against Domke and to amend the awards against Disbrow and Alyeska to reflect full liability. F. Claims Against Knickrehm At the close of Domke's case, Knickrehm moved for a directed verdict, arguing that he could not be personally liable for conspiring to interfere with Domke's contract or breaching Champion's implied covenant of good faith and fair dealing, because Knickrehm had acted within the scope of his employment. Domke conceded that Knickrehm had acted within the scope of his employment but maintained that he could nonetheless be personally liable if his actions in interfering with Domke's contract were intentional and malicious. The court dismissed the claims against Knickrehm, concluding as a matter of law that as an employee acting within the seope of his employment, Knickrehm could not interfere with a contract to which his employer was a party. Knickrehm maintains that the superior court correctly reached this conclusion. He also notes that we have previously recognized that agents cannot be "personally liable for a breach of contract so long as the fact of their agency and the identity of the principal are disclosed." Here, it is undisputed that Domke was aware that Knickrehm acted on behalf of Champion. Domke responds that "a supervisor can be personally liable for his role in the interference with his subordinate's employment contract caused by his own independently tor-tious or malicious acts." In support of this contention, Domke cite Jones v. Central Peninsula Hospital, where we favorably referred to Wagenseller v. Scottsdale Memorial Hospital, an Arizona case that supports Domke's position. According to Domke, Jones's reliance on Wagenseller makes his theory "the rule of law in Alaska." Domke claims that there was enough evidence to support a finding that Knickrehm engaged in independently tortious acts: According to Domke, Knickrehm failed to abide by Alyeska's "policy against eo-employment," lied to Champion about Domke's actions, and lied to Alyeska "when he told [Alyeska] that Domke's termination had nothing to do with Disbrow." But we need not decide if Domke's theory of error has legal merit; even assuming for the sake of argument that it does, we conclude that Domke has failed to carry his burden of establishing that the alleged error actually caused any substantial prejudice. Initially, we note that the extent of the prejudice that Domke realistically might have suffered would have been relatively slight at most. As Domke conceded at trial, his implied covenant and tortious interference claims against Champion, which remained intact, accomplished essentially "the same thing" as his dismissed claim against Knick-rehm could have accomplished. Thus, if the court had left Domke's interference claim intact and he had won a judgment against Knickrehm, there is no reason to suspect that his judgment would have exceeded the award he actually received on his judgment against Champion. At best, he might have had identical judgments against Knickrehm and Champion instead of a judgment against Champion alone. More important, even if the jury accepted Domke's description of Knickrehm's conduct, it would not necessarily have determined that Knickrehm acted maliciously or committed independently tortious acts, as would have been required for a finding of liability under Wagenseller and Jones. The conduct alleged by Domke could as easily have been seen as evincing Knickrehm's genuine desire to protect the interests of his employer, Champion. Domke does not explain why a finding of malicious or independently tortious actions would have been likely, and our own review of the record fails to persuade us of a fair probability that the jury would have made such a finding. We thus conclude that Domke has failed to make a showing of prejudicial error. G. Champion's Negligence on Its Counterclaim Finally, Domke argues that even i#f Champion's counterclaims were compulsory, the court erred when it refused to instruct the jury on Champion's possible negligence in its counterclaim based on unjust enrichment. Domke's proposed instruction would have told the jury that Champion could not recover anything on its counterclaims if the jury found that Champion acted negligently in failing to discover that it was mistakenly paying Domke for two jobs. Domke insists that the evidence supported this instruction, alleging that Champion's payroll supervisor knew of the overpayments as they occurred, and violated his duty to "pay[] attention to his costs like he was required." But Domke concedes that his proposed jury instruction was untimely, and he offers no valid excuse for filing it late. Domke also fails to cite any Alaska authority for the proposition that negligence on Champion's part should have barred recovery on its counterclaims completely. As the case stands now, Domke received the benefit of a comparative fault determination on Champion's counterclaims, in which the jury apportioned forty percent of the loss to Champion. The superior court's refusal to give Domke's late instruction did not amount to plain error merely because it might have produced a better result. IV. CONCLUSION For the reasons stated above, we REMAND with directions for the superior court to hold an evidentiary hearing to determine whether Champion's counterclaims were barred by the statute of limitations and to amend the judgment by disallowing the counterclaims to the extent that the court finds that they were time-barred. We also direct the court to enter a judgment notwithstanding the verdict holding Alyeska vicariously liable for Disbrow's tortious interference. Finally, we direct the court to amend the judgment by vacating its provisions apportioning fault to Domke on his tortious interference claims and by awarding him full, unapportioned damages on those claims. In all other respects we AFFIRM the judgment. EASTAUGH, Justice, not participating. . Reeves v. Alyeska Pipeline Serv. Co., 56 P.3d 660, 668 (Alaska 2002). . Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999). . Id. . Id. . Compare, eg., Grant v. Stoyer, 10 P.3d 594 (Alaska 2000), and Pugliese, 988 P.2d at 581-83 (both holding that new trial required where unre-butted evidence established liability and existence of some damages, but jury awarded nothing), with Richey v. Oen, 824 P.2d 1371 (Alaska 1992) (declining to order new trial over disputed damages and over whether some evidence that tended to show plaintiff's injury pre-existed accident). . See Alaska R. Civ. P. 50(b). . Reeves, 56 P.3d at 668 (quoting Richey, 824 P.2d at 1374). . VECO, Inc. v. Rosebrock, 970 P.2d 906, 911 (Alaska 1999). . Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 346 (Alaska 1990). . Alaska R. Civ. P. 13(a), (b) and 15(c); Mogg v. Nat'l Bank of Alaska, 846 P.2d 806, 813-14 (Alaska 1993). . Miller v. LHKM, 751 P.2d 1356, 1361 (Alaska 1988) (citing Restatement (Seconp) or Jupomznts § 24(2) (1981)). . Ellingstad v. State, Dep't of Natural Res., 979 P.2d 1000, 1010 (Alaska 1999) (quoting Miller, 751 P.2d at 1361, and 6 Aran Wricur & Artaur R. Murer & Mary Kay Kang, Faeperar Practice ANp Procepure § 1410, at 65 (2d. ed.1990)). . 399 P.2d 217 (Alaska 1965). . Id. at 220. . Id. at 219-20. . See Wells, 399 P.2d at 219-20 (finding plaintiff's claim that tax deed was invalid was compulsory and should have been brought in prior action by defendant to quiet title by adverse possession, because earlier adverse possession claim required that tax deed be proven valid). . 979 P.2d 1000, 1010 (Alaska 1999). The claims in Ellingstad also did not require "examination of the same evidence, facts, or circumstances." Id. Here, while evidence of Domke's conversion of the overpayments was admissible, for reasons further addressed below, the controversy surrounding the overpayments was not necessary to prove Domke's claim or integrally related to the claim. See Iglesias v. Mutual Life Ins. Co. of New York, 156 F.3d 237, 240-42 (1st Cir.1998) (employer's counterclaim for restitution was permissive rather than compulsory, because the counterclaims did not involve the same "operative" facts as employee's discrimination and contract claims, despite use of evidence supporting restitution claim to attack credibility of the employee). . We note that neither party's briefing has specified what statutory limit would govern the disputed counterclaims, and the superior court does not appear to have decided the issue. Although Champion's conversion claim would likely be governed by the two-year limit for tort claims, unjust enrichment is essentially a contract claim, so it would be subject to the three-year limit established in AS 09.10.053 for actions "upon a contract or liability, express or implied." Since the jury found in Champion's favor on both alternative counterclaim theories, the longer time limit for unjust enrichment would be dispositive here. . See Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005) ([The task of interpreting and applying a statute of limitations traditionally falls within the province of the courts; so when a factual dispute precludes entry of summary judgment the dispute must ordinarily be resolved by the court[.]"); John's Heating Serv. v. Lamb, 46 P.3d 1024, 1033 (Alaska 2002) (remanding a statute of limitations issue "to the superior court for determination as a preliminary question of fact"); see also Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991) (noting that issues concerning the application of the discovery rule that "are genuine issues of material fact . must be resolved at an evidentiary hearing" before the trial court). . Miller v. Sears, 636 P.2d 1183, 1192 (Alaska 1981). . Id. . Id. (quoting Alaska R. Civ. P. 42(b)). . 930 P.2d 989, 991-92 (Alaska 1997). . Id. at 992. . Id. . Jury Instruction No. 32 read: Champion Technologies has asserted that after the iermination of Domke's employment, evidence was acquired by Champion Technologies that Domke had engaged in misconduct which justified termination, and that this amounts to a defense to his claims.... First, you must determine whether . Champion . had knowledge of Domke's allegedly wrongful conduct prior to his termination. Next, in order to establish this defense, Champion has the burden of proving by a preponderance of the evidence all of the facts necessary to establish: 1) Domke wrongfully retained $19,600 of consultant's pay from Champion Technologies' funds to which he was not entitled; 2) Domke's wrongdoing was of such severity that he in fact would have been terminated on those grounds alone if Champion Technologies had known of it at the time of the termination. If you find that Champion Technologies breached the contract of employment and/or that Domke was wrongfully terminated, but also that Champion Technologies was justified in that action by reason of Domke's wrongful conduct discovered thereafter, Domke's damages are limited to the back pay he would have earned from the date of termination until the date of the discovery of the misconduct. . In Shields v. Cape Fox Corp., 42 P.3d 1083, 1087-89 (Alaska 2002), we held that it was plain error under an earlier version of AS 09.17.080 for the trial court not to instruct the jury on comparative fault in a conversion case involving both tangible-property loss and purely economic loss. Our ruling in this case on the timing of the trial court's decision to allow the jury to allocate fault makes it unnecessary to decide whether Domke's case is distinguishable from Shields. . In arguing about whether the court should submit a last-minute verdict form allowing the jury to allocate fault on this claim, Domke maintained at trial that the verdict form should not be submitted, because the court's fault-allocation ruling was correct on its merits, so omitting the special verdict form would not cause any harm. But Champion argued in favor of the special verdict, insisting that the fault-allocation statute applied and required allocation. In response to Domke's claim that omitting the special verdict form would cause no harm, Champion's trial counsel insisted that the defendants had already been harmed: "[DJefendants have been substantially prejudiced because they did have to alter their closing argument to take out any language to that effect, based on the Court's prior ruling." Domke's counsel replied: "Well, I think that prejudice would go both ways, wouldn't it?" The court then acknowledged that "It goes both ways," but nonetheless elected to submit the last minute special verdict form. . We recognize that even if Domke did nothing to justify Disbrow's efforts to have him terminated, Domke might have been a problematic employee, and his performance on the job might have irritated his superiors at Champion and predisposed them to terminate him more readily than they might have terminated a less difficult employee. But even if this kind of general "un-professionalism" made Domke a likely prospect for firing, this behavior could not properly be deemed a proximate cause of Champion's decision to actually fire him on November 2, 1998; instead, his vulnerability to termination would simply have diminished his predictable tenure as a Champion employee-a factor that the jury was entitled to consider, and presumably did consider, in deciding how much to award Domke for lost wages resulting from his termination. . Jensen v. Alaska Valuation Serv., Inc., 688 P.2d 161, 162-63 (Alaska 1984) ("Although officers of a corporation will not ordinarily be held personally liable for contracts they make as agents of the corporation, they must disclose their agency and existence of the corporation before they will be absolved from liability."). . 779 P.2d 783, 791 n. 10 (Alaska 1989). . 147 Ariz. 370, 710 P.2d 1025 (1985), superseded in other respects by Arizona Revised Statute § 23-1501 (1996).

8412427

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. INTERIOR CABARET, HOTEL, RESTAURANT & RETAILERS ASSOCIATION, Appellee

Fairbanks North Star Borough v. Interior Cabaret, Hotel, Restaurant & Retailers Ass'n

2006-06-09

No. S-11612

289

294

137 P.3d 289

137

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:33:21.910300+00:00

CAP

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

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. INTERIOR CABARET, HOTEL, RESTAURANT & RETAILERS ASSOCIATION, Appellee.

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. INTERIOR CABARET, HOTEL, RESTAURANT & RETAILERS ASSOCIATION, Appellee. No. S-11612. Supreme Court of Alaska. June 9, 2006. Joseph W. Miller, Assistant Borough Attorney, and René Broker, Borough Attorney, Fairbanks, for Appellant. Peter J. Aschenbrenner, Aschenbrenner Law Offices, Inc., Fairbanks, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

2842

18026

OPINION EASTAUGH, Justice. I. INTRODUCTION We consider here whether a nonprofit industry trade association that unsuccessfully challenged a proposed sales tax qualifies as a public interest litigant for purposes of avoiding an Alaska Civil Rule 82 award of attorney's fees. Because all of the association's members have some commercial interest in the sale of aleoholic beverages, and because they had some financial interest in defeating a proposed tax on sales of alcoholic beverages in the Fairbanks North Star Borough, it was an abuse of discretion to conclude that the association was a public interest litigant, even though the extent of the negative impact of the proposal on the members was not established. We therefore reverse and remand for consideration of Fairbanks North Star Borough's motion for attorney's fees. II. FACTS AND PROCEEDINGS The Fairbanks North Star Borough assembly in July 2003 enacted Ordinance 2003-46, which proposed a referendum approving a five percent retail sales tax on alcoholic beverages. The ordinance contained a ballot question and an implementing ordinance that would become effective if voters approved the tax. Interior Cabaret, Hotel, Restaurant & Retailers Association (ICHRRA) is a nonprofit organization that was incorporated in 1997 to support the alcohol beverage industry. Members of ICHRRA are businesses licensed to sell alcoholic beverages. Although ICHRRA has not explicitly admitted that all of its members are for-profit businesses, the borough's opening brief describes ICHRRA's members as "composed entirely of profit-oriented businesses" and ICHRRA's appel-lee's brief does not dispute this description. ICHRRA has acknowledged on appeal that it brought the suit "because its members would be directly and adversely affected" by adoption of the tax ordinance. ICHRRA filed suit on August 8, 2008 to prevent the proposed question from being placed on the October 7, 2003 election ballot. ICHRRA alleged that the ballot question was misleading and that Ordinance 2003-46 proposed an invalid tax, and sought a preliminary injunction to prevent the sales tax question from appearing on the ballot. On August 22 the superior court denied ICHRRA's motion for a preliminary injunetion. The borough assembly then enacted Ordinance 2003-52, which amended the ballot language of Ordinance 2008-46. Borough voters approved the amended tax proposal in the October election. ICHRRA then amended its complaint to allege that the tax was invalid because it violated AS 29.35.150 and AS 04.21.010(c). The borough moved for summary judgment and the superior court granted the borough's motion. When the borough moved for attorney's fees under Civil Rule 82, the superior court found that ICHRRA was a public interest litigant and denied the borough's attorney's fees motion. The borough here appeals only the superi- or court's ruling that ICHRRA is a public interest litigant. III. DISCUSSION A. Standard of Review We review for abuse of discretion a superior court's determination of a party's public interest litigant status made in the context of an Alaska Civil Rule 82 claim for prevailing-party attorney's fees. B. ICHRRA Is Not a Public Interest Litigant. A prevailing party in civil litigation is normally entitled to recover partial attorney's fees under Alaska Civil Rule 82. But the prevailing party is not entitled to an award of attorney's fees if the other party is a public interest litigant. We have specified four criteria for determining public interest litigant status: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance? [ ] "[A] litigant must satisfy all four criteria to be deemed a public interest litigant." The borough does not dispute that ICHRRA sat-isfles the first three criteria Our inquiry therefore focuses on whether ICHRRA would have had sufficient economic incentive to file suit even if the action had lacked general importance. As the party claiming public interest litigant status, ICHRRA bore the burden of showing that it did not have sufficient economic interest to file suit. "[Plossessing an economic interest does not necessarily destroy a party's capacity to be a public interest litigant." "[The court should also look to the facts of the case to determine the litigant's primary motivation for filing the suit" "In making this assessment, the court must review specific facts about the character of the professed public interest litigant and the nature of that litigant's real financial stake in the lawsuit." The superior court, in finding that ICHRRA did not have sufficient economic incentive to file suit, relied on the fact that ICHRRA did not seek monetary damages. But the lack of potential for a monetary recovery, while relevant, is not conclusive. "Economic interest need not take the form of damages. ICHRRA argues that Citizens for the Preservation of the Kenai River, Inc. v. Sheffield indicates that it is a public interest litigant. In Kenai River we upheld the superior court's determination that a nonprofit corporation formed to bring the lawsuit was a public interest litigant because "the superior court could have concluded that, of the alleged one hundred or more individuals represented by CPKR, all but a few had economic incentives that were insubstantial or diffuse enough to satisfy the fourth element of the public interest test." We noted that an organization's economic incentive to bring suit "must depend on the interests of typical members" and we "speculate[d]" that "members that did not submit affidavits had even smaller economic incentives" than the few who did. The court concluded, over a forceful dissent, that it was not an abuse of discretion for the superi- or court to find that the organization was a public interest litigant. ICHRRA's reliance on Kenai River is misplaced. All but a few members of the organization in that case had "insubstantial or diffuse" economic incentives. Here it is undisputed that all of ICHRRA's members have some sort of direct financial interest. In Kachemak Bay Watch, Inc. v. Nouh we upheld the superior court's denial of public interest litigant status to a nonprofit corporation that had unsuccessfully challenged the approval of various aquatic farming permits without seeking monetary damages. We noted that the corporation "did not provide the superior court with detailed information about its membership and their interests." We also observed that two of the corporation's directors were concerned that the permits would adversely affect their property values, and a third was concerned that "aquatic farming in the area could interfere with his business." We therefore held that the superior court had not erred in finding that the corporation's members had sufficient economic interest to file suit for equitable relief, ICHRRA bears the burden of showing that it was not economically motivated to file this suit. The borough argues that in the absence of evidence to the contrary, for-profit businesses are expected to be motivated by economic concerns, and ICHRRA was acting in its members' economic interest in filing this suit. ICHRRA is correct that the economic interest of its members does not automatically preclude it from being a public interest litigant. In Kodiak Seafood Processors Ass'n v. State we noted that the association's "members have a significant stake in the crab and bottom fish fisheries around Kodiak" but concluded that "[the potential economic benefit to [the association] is indirect." Association members would only benefit "if the areas are eventually reopened to crab fishing. There was no indication the closed area affected by the experimental permit would ever be reopened. Here the superior court described the total economic effect of the tax on ICHRRA's members as nebulous and uncertain. The record does not establish the extent to which the tax would reduce sales or revenues, and the extent of additional effort required of retailers collecting the tax was uncertain. But these uncertainties were matters of degree. There was no doubt that the tax would have a direct, negative impact on ICHRRA's members. ICHRRA's memorandum in support of the motion for preliminary injunction argued that the members "would be directly and adversely affected by the voter adoption of" the tax. Because the effect on the members of the association in Kodiak Seafood Processors was indirect and contingent, that case is distinguishable from the one before us. In Kodiak Seafood Processors the "indirect" nature of the potential economic effect turned on the uncertainty of whether certain waters would ever be reopened for fishing. ICHRRA argues that because consumers rather than retailers pay the tax, the tax does not cost its members anything. But the record establishes that at least one of ICHRRA's members has contemplated "absorb{ing] the tax" so that the total price, including the tax, would remain at pretax levels. This implies that some members believe higher prices would hurt sales. Basic economic theory recognizes that the distribution of a tax burden depends on the elasticity of supply and demand, not on whether it is the retailer or consumer who "writes the check" to the government. Furthermore, assuming ICHHRA is correct that the tax burden will ultimately fall on consumers, the higher market price will reduce the market quantity demanded. This reduction will reduce overall sales, to the detriment of members. Moreover, every tax has compliance costs over and above simple monetary costs. ICHRRA has noted that these would include "whether and how to file or register, how to coordinate the Borough tax with the City of North Pole tax, whether [members] would be subject to audits, whether [members] would be subject to interest, penalties and liens." Perhaps these additional burdens can also be passed on to the consumer in the form of higher prices. The full cost to members of the tax includes the "opportunity cost" for time spent for compliance. Members may pass this cost on to consumers but, as explained above, will ultimately suffer reduced sales as the price increase reduces the quantity demanded. ICHRRA seems to suggest that because there may have been significant non-financial burdens on its members this non-financial burden somehow proves that the primary interest was not economic. Yet regulations that require compliance as a condition of doing business tend to increase the cost of doing business, even if the cost is not primarily monetary. Based on ICHRRA's contentions below, we can assume that avoiding additional regulations and borough mandates to collect the proposed tax provided an economic incentive for ICHRRA's members. The fact that some of the burden on ICHRRA's members might be non-monetary does not prove that they had no economic incentive to file suit. For the same reasons, the fact that the relief ICHRRA sought was non-monetary is not important. Preventing the tax from taking effect would likely prevent reductions in profits and sales and avoid compliance costs; this benefit potentially had greater economic impact than a monetary award. Injunctive or declaratory relief can have economic benefit. We are unpersuaded that these potential benefits to ICHRRA's members were "insubstantial" or "diffuse," as ICHRRA argues. The superior court did not clearly err in thinking that the extent of the tax's effect on sales was "uncertain" to ICHRRA when it filed suit. But ICHRRA did not need to know the exact extent of the tax's economic effect in order to have ample economic incentive to file suit. In Kachemak Bay Watch, two members of the plaintiff organization were concerned that aquatic farming permits might lower their property values, and another was concerned that aquatic farms might interfere with its business. We held that the association was not a public interest litigant, even though there was no indication the parties knew the extent of the economic harm the aquatic farms might inflict on their property and business. Similarly, ICHRRA's members had an economic incentive to prevent a sales tax on their product even if they were unsure of the extent to which the tax would negatively affect their businesses. ICHRRA argued in its memorandum in support of its motion for a preliminary injunction that its members "would be directly and adversely affected by" the tax and that it qualified "as a public interest litigant based upon the economic interest of its members." These statements undermine ICHRRA's later claims that it was not motivated by its members' economic interests. Because ICHRRA did not satisfy its burden of showing that it was not motivated primarily by economic concerns, we conclude that it was an abuse of discretion to find that ICHRRA was a public interest litigant. At oral argument on appeal the borough suggested that it was hampered in being denied a discovery opportunity to determine the exact membership of ICHRRA. Because we hold that ICHRRA did not meet its burden of demonstrating that it was not motivated primarily by economic concerns, this discovery issue is moot. IV. CONCLUSION We therefore REVERSE the ruling that ICHRRA is a public interest litigant and REMAND for further proceedings. . Cabana v. Kenai Peninsula Borough, 21 P.3d 833, 835 (Alaska 2001) (citing Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 821 (Alaska 1997)). . See Koyukuk River Tribal Task Force on Moose Mgmt. v. Rue, 63 P.3d 1019, 1020 (Alaska 2003) (" [It is an abuse of discretion to award attorneys' fees against a losing party who has in good faith raised a question of genuine public interest before the courts.' ") (quoting Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974)). In 2003 the legislature amended AS 09.60.010(b) to prevent "discriminat{ion] in the award of attorney fees and costs to or against a party in a civil action or appeal based on" the factors we have used to determine public interest litigant status. Ch. 86, § 2, SLA 2003. Because we conclude that ICHRRA is not a public interest litigant, it is unnecessary to decide whether the 2003 amendment affects this case. . Cabana, 21 P.3d at 836 (quoting Citizens Coal. for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 171 (Alaska 1991)) (internal quotation marks omitted). . Citizens Coal. for Tort Reform, 810 P.2d at 171 (citing Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d 402, 404 (Alaska 1990); Murphy v. City of Wrangell, 763 P.2d 229, 233 (Alaska 1988)). . Cabana, 21 P.3d at 837. . Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1198 (Alaska 1995) (affirming superi- or court's finding that association of seafood company managers seeking to enjoin scallop fishing in closed waters was public interest litigant). . Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d 420, 426 (Alaska 1995) (citing Abbott v. Kodiak Island Borough Assembly, 899 P.2d 922, 924-25 (Alaska 1995)) (emphasis added). . Id. at 425-26 (internal quotation marks omitted). . See Kodiak Seafood Processors, 900 P.2d at 1199 (reasoning that because corporation sought only equitable relief, not damages, economic motivation was not significant motivation in bringing case). . Eyak Traditional Elders Council, 904 P.2d at 426 (noting that "the fact that a litigant seeks monetary relief is not conclusive," rather the court must "determine the litigant's primary motivation for filing the suit" based on all the facts of the case). . Matanuska-Susitna Borough Sch, Dist. v. State, 931 P.2d 391, 403 (Alaska 1997). . Citizens for the Preservation of the Kenai River, Inc. v. Sheffield, 758 P.2d 624 (Alaska 1988). . Id. at 627. . Id. . Id. at 627-28 (Rabinowitz, J., dissenting). . Id. at 627. . Id. . ICHRRA's original complaint asserted that "ICHRRA members are licensed to do business in the State of Alaska under Title 4, Alaska Statutes." ICHRRA's August 11, 2003 memorandum in support of its motion for preliminary injunction stated that "[ICHRRA's president] is, as are ICHRRA members, licensed to do business in the State of Alaska as a licensee under Title 4, Alaska Statutes." Similarly ICHRRA's brief of appellee declares that "ICHRRA originally brought the underlying lawsuit because its 'members would be directly and adversely affected....'" These statements imply that all members are licensees. The borough's brief of appellant explicitly asserts that ICHRRA's "members are all business licensees, all licensed to sell alcoholic beverages." ICHRRA has not disputed this description on appeal. . Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 820-21, 828 (Alaska 1997). . Id. at 828. . Id. . Id. . Cabana, 21 P.3d at 837. . Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1198-99 (Alaska 1995). Because the case involved conservation and preservation of natural resources, see id. at 1193-94, the issues went beyond simple economic concerns. . Id. at 1199. . Id. . , See Jackson v. American Bar Ass'n, 538 F.2d 829, 831 (9th Cir.1976) ("'Where the complaint seeks injunctive or declaratory relief and not monetary damages, the amount in controversy is not what might have been recovered in money, but rather the value of the right to be protected or the extent of the injury to be prevented."). . Kachemak Bay Watch, 935 P.2d at 828.

8412324

Rance BRANNON and Paul Brannon, Appellants, v. CONTINENTAL CASUALTY COMPANY, A Stock Insurance Company and CNA Insurance Companies, Appellees

Brannon v. Continental Casualty Co.

2006-06-09

No. S-11505

280

289

137 P.3d 280

137

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:33:21.910300+00:00

CAP

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

Rance BRANNON and Paul Brannon, Appellants, v. CONTINENTAL CASUALTY COMPANY, A Stock Insurance Company and CNA Insurance Companies, Appellees.

Rance BRANNON and Paul Brannon, Appellants, v. CONTINENTAL CASUALTY COMPANY, A Stock Insurance Company and CNA Insurance Companies, Appellees. No. S-11505. Supreme Court of Alaska. June 9, 2006. Peter J. Maassen, Ingaldson, Maassen & Fitzgerald, P.C., Anchorage, for Appellants. Jahna M. Lindemuth and John A. Trep-tow, Dorsey & Whitney LLP, Anchorage, for Appellees. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETT, Justices.

5195

32467

OPINION EASTAUGH, Justice. I. INTRODUCTION Paul and Rance Brannon sued Terry Pfleiger. When his insurer, Continental Casualty Company, failed to defend him, Pfleiger assigned to the Brannons his rights arising from Continental's failure to defend. The Brannons then sued Continental. Pfieiger later confessed judgment to the Brannons in the underlying lawsuit. Rea soning that the statute of limitations began running on Pfleiger's claims against Continental when Continental denied Pfleiger a defense, the superior court dismissed the Brannons' suit against Continental as untimely. We hold that the claim that Continental breached its duty to defend accrued when Continental notified Pfleiger it would not defend him, but that the running of the limitations statute was equitably tolled until the underlying litigation was complete. We therefore vacate the judgment of dismissal and remand. II. FACTS AND PROCEEDINGS A. The Underlying Lawsuit Paul and Rance Brannon purchased California restaurant franchising assets from California investors in 1992. The assets included a Johnny Rockets restaurant in Huntington Beach, a Johnny Rockets restaurant in Newport Beach, and Johnny Rockets franchising rights for Orange County. Terry Pficiger, an associate at Jack White Real Estate (JWC) in Anchorage, acted as the Brannons' real-estate broker during this transaction. For his assistance with the transaction, Pfleiger was given a ten percent share in JROC, Inc., the corporation formed to manage the restaurant franchises. The asset purchase agreement was secured by a $750,000 note executed by JROC, Inc. and was jointly and severally guaranteed by Rance and Clara Brannon, Paul Brannon, Terry and Nancy Pfleiger, and Mr. and Mrs. Ronald Paradis. JROC defaulted on the note in 1994. In December 1994 the California investors filed an Alaska superior court complaint captioned JROC Fashion Island v. Brannon, Case No. SAN-94-10728 CI, against Rance Brannon, Clara Brannon, Paul Brannon, Terry Pfleiger, and Nancy Pfleiger. Paul and Rance Brannon then filed a cross-claim (the "Bran-non cross-claim") against Terry Pfleiger and JWC, alleging that "[als broker and agent for the Brannons, Pfleiger and JWC owed fiduciary duties to the Brannons." The Brannons requested damages exceeding $1,000,000. Through his personal attorney, Pfleiger answered the Brannon cross-claim on July 11, 1997. Continental Casualty Company was JWC's professional liability insurance carrier. It was promptly notified of the Brannon cross-claim. On July 16, 1997 Continental sent Pfleiger a "Reservation of Rights" letter which stated the insurance company's intent to "preserve the rights of all concerned without waiving our right to continue our coverage investigation." Pfleiger's attorney wrote Continental, arguing that allegations in the Brannon cross-claim triggered Continental's duty to defend Pfleiger under JWC's insurance policy. On August 13, 1997 Continental sent Pfleiger's attorney a letter citing nine policy exclusions to show that the Brannon cross-claim was not covered by the insurance policy. The letter also stated:. Based. on the documentation we have received to-date we must respectfully disclaim coverage to your client for this loss. We base our disclaimer on the fact that your client was not working within the seope of his duties as an agent for Jack White Real Estate at the time he entered into the franchise purchase agreement with the [Brannons]. In addition, the above quoted exclusions would apply to this loss. Finally, the original complaint was filed prior to the policy's inception date. On the same day, in a separate letter, Continental notified JWC that it would continue to defend JWC against the Brannon cross-claim under a reservation of rights. (JWC settled with the Brannons for $60,000 in 1998.) Facing both the original JROC Fashion Island lawsuit and the Brannon cross-claim, Pfleiger filed for bankruptcy in September 1997. Pfieiger's bankruptcy petition automatically stayed all claims against him. The trustee of Pfleiger's bankruptcy estate moved in 1998 for authority to sell and assign to the Brannons any claims Pfleiger had against Continental arising out of the Bran-non cross-claim. The bankruptey court issued an order on November 5, 1998 authorizing the trustee to sell to the Brannons Pfleiger's claims "that arise from the refusal of Continental Casualty Company to defend and provide coverage for the Brannonsg' claims against [Pfleiger] related to the two Johnny Rocket franchise restaurant operations in California" The trustee executed the assignment of these claims on November 18, 1998. On July 15, 1999 the Brannons, invoking Pfleiger's assigned rights against Continental, filed a superior court complaint against Continental alleging breach of contractual duties under the insurance policy, negligence, and breach of the covenant of good faith and fair dealing. This 1999 complaint was never served on Continental and was dismissed without prejudice in March 2001 for failure to prosecute. In 2000 the Brannons sought bankruptcy court relief from the stay of proceedings against Pfleiger; they did so to establish Pfleiger's liability to them on their cross-claim, obtain a liability judgment in their favor against Pfleiger, and pursue that judgment against Continental for breach of its duty to defend Pfleiger. The bankruptcy court granted relief from the stay on October 6, 2000 "solely for the purpose of allowing the Brannons to liquidate their claim against [Pfleiger] . and then to pursue collection of any judgment which may be entered in their favor against [Continental]." Four days later, on October 10, 2000, the bankruptey court discharged "all" of Pfleiger's "dis-chargeable debts." In August 2008 Pfleiger confessed judgment to the Brannons for $2,889,868.34. This amount included a principal award of $1,713,444 plus pre-judgment interest and attorney's fees. Pfleiger's confession of judgment was filed in the JROC Fashion Island case on August 28, 2008. B. -The Current Lawsuit On March 15, 2002 the Brannons filed a superior court complaint against Continental that was nearly identical to their unserved 1999 complaint. Continental moved for summary judgment, asserting the statute of limitations, the doctrine of unclean hands, and policy exelusions; it also moved for partial summary judgment on damages. The Bran-nons moved for partial summary judgment on their claim that Continental had breached its duty to defend Pfleiger, After oral argument on the summary judgment motions, the superior court held that "Tthe statute of limitations for the breach of the duty to defend, when the insurance contract excludes coverage, should begin to run on the date the insurance company refuses to defend." It concluded that because Continental had denied Pfleiger a defense on August 13, 1997, the three-year statute of limitations began to run on that day. Because the Brannons did not file their complaint until March 15, 2002, more than three years later, the superior court granted Continental's motion for summary judgment on statute of limitations grounds. The superior court also held that Continental did not have a duty to indemnify Pfleiger under the terms of the insurance contract. The superior court stated that "it is uncontroverted that Pfleiger had a direct 10% interest in the profits and losses of the Johnny Rockets investment.... Accordingly, Exelusion N of the policy applies and there was no coverage for the alleged loss under the terms of the policy." But the court left open the possibility that Continental could "be estopped to deny coverage" if it was found to have breached the duty to defend. The superior court expressly stated that it was not ruling on the other pending motions, including the parties' motions for summary judgment on the question whether there was a breach of the duty to defend, Continental's motion for summary judgment on damages, and Continental's motion for summary judgment on the issue of unclean hands. The Brannons appeal the ruling that their complaint against Continental was untimely. III. DISCUSSION A. Standard of Review We review summary judgment decisions de novo, affirming if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In reviewing the grant of a summary judgment motion, all factual inferences must be drawn in favor of the party against whom summary judgment was entered. Whether a claim is barred by the statute of limitations is a question of law that we review de novo. B. A Cause of Action for Breach of the Duty To Defend Accrues when the Insurance Company Denies a Defense, but Is Equitably Tolled Until Entry of Final Judgment. Continental's obligation to defend its insureds against a third-party claim is contractual. Generally, a cause of action for breach of contract accrues, and the statute of limitations begins to run, "at 'the time of the breach of the agreement, rather than the time that actual damages are sustained as a consequence of the breach'" A cause of action for denial of coverage under an insurance policy accrues when coverage is disclaimed and the insured is notified. Continental argued below that, per this precedent, the statute of limitations for the claim of breach of the duty to defend began to run on August 13, 1997-when Continental notified Pfleiger that it would not defend him in JROC Fashion Island. The superior court stated that the "cases that defendant cites on this issue appear dispositive" and held that the statute of limitations on the breach of the duty to defend claim began running on August 18, 1997. The superior court also stated: "Where, as here, there is no contractual duty to indemnify, but at most only a duty to defend, the statute of limitations should begin to accrue at the time the defendant first refused to defend Pfleiger. When an action for breach of the duty to defend accrues is an issue of first impression for this court. The Brannons argue that we should hold that the duty to defend does not accrue until the underlying litigation is resolved-here, on August 28, 2008, when Pfleiger's confession of judgment was en tered. A majority of the courts examining this issue have determined that a cause of action for breach of the duty to defend accrues "with the termination of the underlying litigation which the insurer refused to defend." Although insurance companies normally argue that breach of the duty to defend should be treated like any other breach of contract, numerous courts have reasoned that the duty to defend cause of action is distinguishable from other breach of contract causes of action because the duty to defend is ongoing. For example, the United States Court of Appeals for the Ninth Circuit has stated: "The insurer's duty to defend is a continuing duty that may be assumed at any time before final judgment. The insured may therefore elect to wait until a final judgment is entered before filing [its] action against the insurer. The California Supreme Court has taken a slightly different approach. In Lambert v. Commonwealth Land Title Insurance Co., it held that the cause of action for refusal to defend "accrues upon discovery of loss or harm, ie., when the insurer refuses to defend." But the court noted a problem with this accrual date: "[The underlying litigation may take over two years . and would allow expiration of the statute of limitations on a lawsuit to vindicate the duty to defend even before the duty itself expires. This grim result is untenable." It therefore held that "[allthough the statutory period [for breach of the duty to defend] commences upon the refusal to defend, it is equitably tolled until the underlying action is terminated by final judgment." We adopt the Lambert rule. It achieves the same result as the majority rule but is more consistent with our existing contract case law. We have repeatedly observed that a cause of action for breach of contract usually accrues when the agreement is breached. An insurance company therefore breaches the duty to defend when it refuses to defend the insured and the insured is notified of the refusal. - The Lambert rule is also more closely aligned with general Alaska statute of limitations principles than the majority rule. One justification for the majority rule is that the extent of the injury is unknown until the entry of final judgment. But in Alaska it is irrelevant if the full scope of the injury is known; the cause of action accrues when the breach occurs. The doctrine of equitable tolling is also well-rooted in Alaska law. Three conditions must be met before a statute of limitations may be equitably tolled: "(1) pursuit of the initial remedy gives defendant notice of plaintiff's claim, (2) defendant's ability to gather evidence is not prejudiced by the delay, and (8) plaintiff acted reasonably and in good faith." An insurance company has notice of a potential duty to defend when the insured tenders the defense. Once the defense is tendered, the insurance company has the ability and motivation to gather evidence; any prejudice that thereafter results likely arises from the insurance company's refusal to defend and should not be held against the insured. Whether an insured has acted reasonably and in good faith is a question of fact for the superior court to determine on a case-by-case basis. The California approach also aligns more closely with Alaska law in that it allows (but does not foree) an insured to file suit for breach immediately after the insurance company denies the defense. The majority rule implies that the insured should wait until final judgment is entered. If the cause of action does not acerue until entry of final judgment in the underlying litigation, an insured who files an action before entry of final judgment would be doing so prematurely. In Alaska a party can, during the pen-dency of the underlying litigation, seek a declaratory judgment on whether the insurance policy requires the insurer to defend the insured in the underlying litigation. But tolling the statute of limitations during the pendency of the underlying litigation avoids requiring the insured to participate in two lawsuits at once. After the insurance company has denied the insured a defense, it would be potentially unfair to require the insured to file a lawsuit against the insurance company while simultaneously defending himself in the underlying lawsuit. The Brannons correctly point out that the holding in Lambert is similar to the way we handle the statute of limitations in some legal malpractice cases. In Shaw v. State we held that the statute of limitations for legal malpractice claims arising out of a criminal case should be tolled during the pendency of a claim for post-conviction relief. We determined that tolling the statute of limitations would promote judicial economy, lead to certainty of damages, and assist courts by establishing a "bright-line rule." Our holding here addresses these same issues. It estab lishes a bright-line rule by tolling the statute of limitations until final judgment in the underlying litigation. Waiting until after entry of final judgment to file against the insurer ensures that the full extent of the insured's damages is known, promoting judicial economy and reducing speculation. We therefore hold that although a cause of action for breach of the duty to defend accrues when the insured is notified of the insurance company's refusal to defend, the statute of limitations is equitably tolled until entry of final judgment in the underlying lawsuit. C. The Brannons' Claim that Continental Breached Its Duty To Defend Pfleiger Is Not Time-Barred. The superior court did not err by determining that the acerual date for the duty-to-defend claim was August 18, 1997. But, as we held above, the statute of limitations should have been equitably tolled while the JROC Fashion Island litigation was pending. That litigation was ongoing until at least August 28, 2008, when Pfieciger's confession of judgment was entered. The Bran-nons' March 15, 2002 complaint was therefore not untimely. Continental contends that Pfleiger's confession of judgment "could not start the statute of limitations running as a matter of law." It argues that the confession of judgment was void from the beginning because it "was entered after Pfleiger's bankruptcy discharge." Continental points to Standifer v. State, in which we held that "the district court will be deprived of subject matter jurisdiction to act on the judgment" if the debt is discharged. We there instructed the district court to set aside a default judgment as void if the court determined that the underlying debt had been previously discharged by Standifer's bankruptcy. Our review of the bankruptey court's actions in this case convinces us that the bank-ruptey court did not discharge, and did not intend to discharge, the Brannons' claims against Pfleiger. All claims against Pfleiger were automatically stayed when he filed for bankruptcy protection. The trustee of Pfleiger's bankruptcy estate moved for authority to sell the Brannons all of Pfleiger's claims against Continental arising out of the Brannon cross-claim. The bankruptcy court then entered an order authorizing the trustee to sell to the Brannons Pfieiget's claims "that arise from the refusal of Continental . to defend and provide coverage for the Bran-nons' claims against [Pfleiger] related to the two Johnny Rocket franchise restaurant operations." Per that order, the bankruptcy trustee assigned those claims to the Bran-nons in 1998. In 2000 the Brannons moved in bankruptcy court for relief from the stay of claims against Pfleiger "in order to establish [Pfleiger's] liability for the Brannon Crossclaims and obtain a judgment for damages in the State Court Lawsuit, and in turn, attempt to recover these damages from [Pfleiger's] insurance carrier by pursuing the claims and rights purchased from [Pfleiger's] bankruptcy estate." On October 6, 2000 the bank-ruptey court granted the Brannons relief from the stay "solely for the purpose of allowing the Brannons to liquidate their claim against [Pfleiger] in the state court proceeding and then to pursue collection of any judgment which may be entered in their favor against the debtor's insurance carrier." On October 10, 2000 the bankruptey court released Pfleiger from all "dischargeable debts." The October 10 discharge also ordered: "Any judgment heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal lability of the debtor...." Given the bankruptcy court's entry of the 1998 order authorizing the sale of Pfleiger's claims to the Brannons and its entry of the October 6, 2000 order lifting the stay and allowing the Branmons to liquidate their claim against Pfleiger and pursue enforcement of the judgment against Continental, it would be nonsensical to read the bankruptey court's October 10, 2000 order entered four days later as discharging Pfleiger from the Brannons' claim against him. Moreover, we have previously held that an insurance company, in order to reduce its liability, cannot force an insured to declare bankruptcy. Holding that the bankruptcy court's discharge removed Pfleiger's ability to confess judgment on the Brannonsg' claims would allow Continental to benefit from fore-ing its insured into bankruptey. Our reading of the bankruptey court's orders avoids this inequitable result. Continental also argues that Pfleiger's confession of judgment has no legal effect because "[this Court has approved the use of confessions of judgments . only when the defendant confessing judgment faces personal risk of liability that justifies him entering into such arrangement." But when an insurance company refuses to defend its insured, the insured can take reasonable steps to protect its interests. Continental misreads Great Divide Insurance Co. v. Carpenter, the case on which it relies in making this argument. We there observed that an insured whose insurer has committed a material breach of one of its defense obligations is permitted to enter into a settlement agreement with the injured claimant. Even settlement agreements that contain a covenant not to enforce against the insured are allowed because "an insured that has been placed at economic risk by its insurer's breach should be allowed to protect itself by shifting the risk to the breaching insurer without first subjecting itself to potential financial ruin." But we also noted in Great Divide that "Iclovenant settlements can be abused"; because of the potential for abuse, we stated that "we have been careful to hold that an insurance company that has materially breached its defense obligations whose insured has made such an agreement is not automatically bound by the agreement." The check on this potential abuse is a reasonableness review to be conducted by the trier of fact. In short, the bankruptey court's October 10, 2000 order did not discharge the Bran-nong' claim against Pfleiger. Pfleiger's subsequent confession of judgment was therefore not void. We assume that the entry of Pfleiger's confession of judgment ended the JROC Fashion Island litigation. Although the cause of action for breach of the duty to defend accrued when Continental notified Pfleiger of its refusal to defend, the statute of limitations was equitably tolled at least until Pfleiger's confession of judgment was entered on August 28, 2008. The Brannons' March 15, 2002 complaint was therefore timely. D. We Decline To Affirm on Alternative Grounds. Continental argues that, regardless of the limitations issue, we should affirm the superior court's decision because Continental had no duty to defend Pfleiger. It claims that Continental's policy excluded coverage for any transaction in which Pfieiger was an investor or had a financial interest and that it is "undisputed" that "Pfleiger was an investor in the JROC deal." Continental had also moved for summary judgment based on unclean hands and for partial summary judgment on damages. The superior court stated that, having resolved the case on the statute of limitations issue, it was not reaching the many other issues presented by the parties. We decline to affirm the judgment on the basis of any issue the superior court did not reach. Continental's alternative grounds for summary judgment potentially raise questions about whether there are genuine, material factual disputes. The superior court is in the best position to consider those threshold questions for the first time. We remand for further proceedings on the remaining motions. IV. CONCLUSION For the reasons discussed above, we VACATE the judgment of dismissal and REMAND. . Continental Casualty Company contends that Pfleiger was an investor in the franchising deal, not a real-estate broker. The Brannons argue that Pfleiger acted as their real-estate broker and advisor. On appeal from a summary judgment, we review the facts in a light most favorable to the party against whom summary judgment was entered. Zok v. Collins, 18 P.3d 39, 40 n. 2 (Alaska 2001). Because Pfleiger's role is disputed and summary judgment was entered against the Brannons, we view the facts in the light most favorable to the Brannons. We assume here that Pfleiger was acting as a real-estate broker, and do not assume that he was an investor. Our discussion of facts is meant to give context to the legal issues arising out of the summary judgment; it is not meant to preclude the parties from litigating genuine issues of material fact on remand. . 11U.S.C. § 362(a). . The applicable statute of limitations, AS 09.10.053, requires that a contract action be commenced within three years. . Makarka v. Great Am. Ins. Co., 14 P.3d 964, 966 (Alaska 2000). . Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267, 269 (Alaska 2005). . Alderman v. Iditarod Props., Inc., 104 P.3d 136, 140 (Alaska 2004). . Tush v. Pharr, 68 P.3d 1239, 1249 (Alaska 2003) (holding duty to defend is contractual obligation); see also Afcan v. Mutual Fire, Marine & Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979) ("An insurer's duly to defend and its obligation to indemnify are separate and distinct contractual elements."). . K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 725 (Alaska 2003) (quoting Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 490-91 (Alaska 1975)). . Howarth, 540 P.2d at 490 (holding that statute of limitations began to run when insured suffered loss and insurance company denied insured's claim). . Fireman's Fund Ins. Co. v. Sand Lake Lounge, Inc., 514 P.2d 223, 227 (Alaska 1973) (holding in context of first-party insurance that cause of action for denial of insurance coverage does not accrue until insurer notifies insured of denial of coverage). . We have repeatedly observed that the duty to defend is separate from and broader than the duty to indemnify. E.g., Stephan & Sons, Inc. v. Municipality of Anchorage, 629 P.2d 71, 73 (Alaska 1981) ("We have already held in two contexts that there may be a duty to defend even if there is no duty to indemnify: insurance cases and implied indemnity cases."); Afcan, 595 P.2d at 645 ('Depending upon the nature of the claim against the insured, the insurer may have an obligation to defend although it has no ultimate liability under the policy."). . Jane Massey Draper, Annotation, Limitation of Action Against Insurer for Breach of the Contract to Defend, 96 AL.R.3d 1193, 1980 WL 130876, § 2(a) (2004); see also 2 Arran D. Wiwpr, Insurance Crams anp Disputes § 9.2, at 48 (4th ed. 2001) ("The majority view . is that the insured's cause of action does not accrue until the termination of the third-party action brought against the insured."). . Draper, supra note 12 at § 2(a). . See, eg., Vigilant Ins. Co. v. Luppino, 352 Md. 481, 723 A.2d 14, 19 (1999); Colpan Realty Corp. v. Great Am. Ins. Co., 83 Misc.2d 730, 373 N.Y.S.2d 802, 804 (N.Y.Sup.1975); Bush v. Safeco Ins. Co. of Am., 23 Wash.App. 327, 596 P.2d 1357, 1358 (1979). . Tibbs v. Great Am. Ins. Co., 755 F.2d 1370, 1375-76 (Oth Cir.1985) (citation omitted). See also 17 Gromer J. Coucs, Cover on Insurance § 236.102 (2004) ("Unlike a duty to pay, which becomes fixed upon rendition of a judgmenit{,] . the duty to defend is necessarily a continuing one that commences upon notice of the claim and extends at least until judgment is entered and all appeals from it have been resolved."); Vigilant, 723 A.2d at 19 ("[Aln insured should be allowed to expect the insurer to step in and cure its breach so long as the underlying action is continuing."). . Lambert v. Commonwealth Land Title Ins. Co., 53 Cal.3d 1072, 282 Cal.Rptr. 445, 811 P.2d 737, 739 (1991). . Id. . 1d. . E.g., Kaiser v. Umialik, 108 P.3d 876, 880 (Alaska 2005); K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724-25 (Alaska 2003); Bauman v. Day, 892 P.2d 817, 827 (Alaska 1995); Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 490-91 (Alaska 1975). See also 14 Groree: J. CoucH, Couce on Insurance § 205.62 (2004). . 2 Arran D. Winpt, Insurance Crams anp Disputes § 9.2, at 49 (4th ed.2001) (stating that best rationale for majority rule is that "it is not until [the underlying action is completed] that the totality of the insured's claim against the company is ascertainable and the right of action is complete"). . Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1272 (Alaska 2001) (noting that injured party need not know full extent of injuries before statute of limitations begins to run under discovery rule}. . Howarth, 540 P.2d at 491. . Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1087 (Alaska 1989). See also Kaiser, 108 P.3d at 881-82; Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 886 (Alaska 2004); Smith v. Thompson, 923 P.2d 101, 105 (Alaska 1996). . Dayhoff, 772 P.2d at 1087. . Lambert v. Commonwealth Land Title Ins. Co., 53 Cal.3d 1072, 282 Cal.Rptr. 445, 811 P.2d 737, 741 (1991). . Id. . Wior, supra note 12 at 49 ("[It is not until [the underlying action is complete] that the totality of the insured's claim against the company is ascertainable and the right of action is complete."). - . See, eg., Bush v. Safeco Ins. Co. of Am., 23 Wash.App. 327, 596 P.2d 1357, 1358 (1979) (holding that "the cause of action [for breach of the duty to defend] does not accrue until the third party litigation involving the insured has ended in final judgment"). . State, Dep't of Transp. & Pub. Facilities v. State Farm Fire & Cas. Co., 939 P.2d 788, 790 (Alaska 1997) (reviewing superior court's declaratory judgment that insurance company had no duty to defend). A party can also seek a declaratory judgment on the scope of the duty to defend during pendency of the underlying litigation. See O'Neill Investigations, Inc. v. Illinois Employer's Ins. of Wausau, 636 P.2d 1170, 1172 (Alaska 1981). . Cf. Shaw v. State, Dep't of Admin., Pub. Defender Agency, 816 P.2d 1358, 1361 (Alaska 1991) ("[We note the desirability of allowing a criminal defendant with a valid post-conviction relief claim to pursue that remedy without the distraction of also filing a legal malpractice claim."). . Id. at 1361. . Id. . Standifer v. State, 3 P.3d 925, 928 (Alaska 2000). . Id. at 929 ("Thus, all judgments purporting to establish personal liability of a debtor on a discharged debt, including judgments obtained after bankruptcy, are void to that extent. They are not voidable, they are void ab initio as a matter of federal statute."). . 11 U.S.C. § 362(a). . Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 754-55 (Alaska 1992). . Other courts have similarly refused to allow an insurer's liability to be excused by the insured's bankrupicy. See In re Jet Florida Sys., Inc., 883 F.2d 970, 975 (11th Cir.1989) ("The 'fresh-start' policy [of 11 U.S.C. § 524] is not intended to provide a method by which an insurer can escape its obligations based simply on the financial misfortunes of the insured."); In re Beeney, 142 B.R. 360, 363 (B.A.P. 9th Cir.1992) (''That through bankruptcy he can divest himself of his personal obligation to compensate them for injuries suffered due to his negligence, should not wipe out the carrier's commitment which permilted him to drive a car."); In re Jason Pharm., Inc., 224 BR. 315, 321 (Bankr.D.Md.1998) ('However, the discharge in bankruptcy, along with the coextensive permanent injunction and fresh start, are exclusive to the debtor, and do not otherwise affect the enforcement of any underlying debt, or any nondebtor liability thereon."); Levantino v. Ins. Co. of N. Am., 102 Misc.2d 77, 422 995, 1002 (1979) ("Nor should a plaintiff be required to undergo a bank-rupicy in order to benefit the wrongdoer who has caused his financial distress in the first place.") (citation omitted). . Theodore v. Zurich Gen. Accident & Liab. Ins. Co., 364 P.2d 51, 55 (Alaska 1961) (holding that after insurer had denied defense insured was "justified in doing what it considered best to protect its interests"). See also Grace v. Ins. Co. of N. Am., 944 P.2d 460, 464-65 (Alaska 1997) (noting that if insurance company wrongfully denies coverage, insured is excused from complying with policy obligations); Davis v. Criterion Ins. Co., 754 P.2d 1331, 1332 (Alaska 1988) (Lolding that if insurer wrongfully denied coverage, insurer could not raise insured's failure to provide notice of a suit under a cooperation clause as a defense to liability). . Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 (Alaska 2003). . Id. at 608-09. . Id. at 609. . Id. . Id. . We can affirm a decision on grounds other than that on which the superior court relied so long as the record supports our resolution. Zaverl v. Hanley, 64 P.3d 809, 819 n. 25 (Alaska 2003). . See, eg., Fyffe v. Wright, 93 P.3d 444, 453 (Alaska 2004) (holding that superior court is 'better-equipped" to decide fact-intensive issue).

8412079

CITY OF SAINT PAUL, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Tanadgusix Corporation, and Pribilof Bering Seafoods, Ltd., Appellees

City of Saint Paul v. State, Department of Natural Resources

2006-04-21

No. S-11299

261

267

137 P.3d 261

137

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:33:21.910300+00:00

CAP

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

CITY OF SAINT PAUL, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Tanadgusix Corporation, and Pribilof Bering Seafoods, Ltd., Appellees.

CITY OF SAINT PAUL, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Tanadgusix Corporation, and Pribilof Bering Seafoods, Ltd., Appellees. No. S-11299. Supreme Court of Alaska. April 21, 2006. Rehearing Granted July 12, 2006. Ronald L. Baird, Office of Ronald L. Baird, Anchorage, for Appellant. John T. Baker, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee State of Alaska. Terrance A. Turner and Natalie A. Cale, Turner & Mede, P.C., Anchorage, for Appel-lees Tanadgusix Corporation and Pribilof Bering Seafoods, Ltd. Before: BRYNER, Chief Justice, MATTHEWS, EASTATUGH, FABE, and CARPENETI, Justices.

3794

24279

OPINION BRYNER, Chief Justice. I. INTRODUCTION The City of Saint Paul applied to the Alaska Department of Natural Resources for a conveyance of state-owned tidelands in Village Cove harbor on St. Paul Island, asking that the boundary of the tidelands be drawn according to a 1986 BLM survey. The city's proposed method of describing the tidelands' boundary was opposed by the owner of the adjoining uplands, Tanadgusix Corporation, which contended that the boundary should follow the current mean high water line, to be established by conducting a new survey. The Commissioner of Natural Resources approved the city's request for conveyance but chose to use Tanadgusix's method for describing the conveyed tidelands' boundary. The city challenges this ruling on appeal, claiming that the department lacked authority to decide the disputed boundary through administrative adjudication and that the dispute could only be resolved in a judicial action. But in our view the department did not adjudicate the disputed boundary; to the contrary, by using the statutory definition of tidelands to describe its conveyance, the department properly avoided addressing the boundary dispute, and so left the point open for judicial resolution if it arises in a future court action. Accordingly, we affirm the department's ruling. II. FACTS The City of Saint Paul is located on St. Paul Island in the Bering Sea. On the southern portion of the island, a narrow peninsula forms a natural cove called Village Cove; a harbor for commercial fishing vessels has been built within the Cove. The submerged lands in Village Cove harbor and their surrounding tidelands are owned by the State of Alaska. In 1983-84 the Bureau of Land Management surveyed parts of St. Paul Island, including the area around Village Cove, and mapped a "meander line," approximating the seaward boundary of the uplands in the vicinity of Village Cove harbor. Because the BLM did not file its survey until 1986, the meander line is commonly called the 1986 BLM meander line. In 1984 the city obtained a permit from the Army Corps of Engineers to build a breakwater for Village Cove harbor, which is frequently hit by severe storms. The BLM permit further allowed the city to build a haul road along the shoreline so that the city would have access to the construction site for the breakwater. The city built the haul road and the breakwater in June 1984, but a storm washed out the breakwater that November. The city rebuilt the breakwater in 1988. During the next four years, the state issued long-term leases for tracts of its tidelands in Village Cove harbor to the city and to Tanadgusix Corporation, which owns most of the uplands surrounding the harbor. Several years later, in 1995, the legislature enacted a law allowing municipalities to acquire the state's interest in tidelands located within or contiguous to the municipalities' borders. Under AS 38.05.825, a municipality may apply to the Department of Natural Resources for a conveyance of tidelands; if the municipality's application meets certain criteria, the department must grant the request for conveyance unless the Commissioner of Natural Resources expressly determines that the state's interest in retaining the tidelands clearly outweighs the munici pality's interest. The conveyance transfers to the municipality the state's right to use and manage the tidelands, but does not confer the right to sell or dispose of the lands or exempt them from the public trust doctrine. In response to the legislature's enactment of AS 88.05.825, the City of Saint Paul submitted an application to the department in 1997, seeking a conveyance of all the tidelands in Village Cove. Tanadgusix opposed the city's application, advancing various reasons why the conveyance might not be in the public interest and expressing concern over the future status of the tideland Tanadgusix leased from the state. The department nonetheless issued a preliminary report recommending approval of the tideland conveyance. The report also recommended that the boundary of the conveyed tideland should follow the 1986 BLM meander line. Tanadgusix submitted supplemental comments, opposing the department's preliminary report on several grounds. One objection raised by Tanadgusix was that the 1986 meander line no longer reflected the current tideland boundary because the mean high water line had gradually changed since the BLM completed its survey. As a result, Tanadgusix asserted, using the BLM 1986 meander line to describe the conveyance would "convey significant portions of . uplands to the City in the guise of Tidelands." After considering these additional comments, the commissioner issued a formal decision approving the tideland conveyance under AS 38.05.825. The decision rejected Tanadgusix's objections to the 1986 meander line, noting that "[the 1986 BLM meander line is the most practicable line which approximates the seaward boundary [separating the tidelands from the uplands]." Tanadgusix asked for reconsideration, renewing its contention that the 1986 meander line would not correctly reflect the current boundary separating the conveyed tidelands from Tanadgusix's adjoining uplands. In responding to Tanadgusix's arguments on reconsideration, the city urged the department to adhere to its decision to use the 1986 meander line, alleging that any recent changes to the mean high water line should be attributed to a dredging operation by Tanadgusix, in which the corporation removed materials from an area of the harbor that it leased from the state and dumped them onto tidelands adjoining the corporation's upland property. According to the city, these operations artificially expanded the borders of Tanadgusix's uplands by altering the mean high water line. Because an uplands owner is only entitled to benefit from a boundary change occurring by accretion -that is, as gradual, naturally occurring change in the mean high water line-the city reasoned that the boundary between the tidelands and uplands in Village Cove harbor should properly remain as established in the 1986 BLM meander line. In reply, Tanadgusix denied placing any fill onto the tidelands adjoining its property, insisting that recent increases in its uplands were caused by gradual accretion, thus making the current mean high water line the most accurate measure of the tidelands the state proposed to convey. Tanadgusix also asked for an evidentiary hearing on this issue. The commissioner granted Tanadgusix's request to reconsider his decision on this point but declined to hold an evidentiary hearing, ruling instead that the parties would only be allowed to present oral arguments. After hearing arguments, the department left the record open during an "information gathering" phase, so that both parties could subrait supplemental information documenting their positions. During this phase, engineers from each side were allowed to meet informally with the department's engineers. Upon reconsidering the case in light of the parties' oral arguments and supplemental materials, the commissioner issued a final decision on reconsideration that confirmed his original decision to convey the tidelands in most respects, but modified the department's method of describing the conveyance's boundaries. Finding no conclusive evidence that "a significant amount of fill was placed on the tidelands below the MHW [mean high water] line so as to legally fix the boundary at some location other than the current MHW line," the commissioner ordered that "the MHW line to be used as the boundary of the tideland conveyance shall be the current MHW line," and directed that a new survey be "established in accordance with 11 AAC 53.120(1)" to determine this line. The city unsuccessfully appealed to the superior court and then filed this appeal. III. DISCUSSION On appeal the city challenges the commissioner's decision that the boundary of the tideland conveyance should be determined by a new survey establishing the current mean high water line in the vicinity of Village Cove harbor, instead of by using the 1986 BLM meander line. The city builds its argument on the premise that the commissioner's choice of the current mean high water line over the 1986 BLM meander line amounts to a decision adjudicating a boundary dispute between the city and Tanadgusix. Insisting that boundary disputes can be resolved only by courts, the city asserts that the commissioner lacked authority to adjudicate this boundary dispute. Alternatively, the city argues, even if the commissioner did have authority to rule on this point, he erred in denying an evidentiary hearing and in failing to make adequate findings. Tanadgusix and the state respond by questioning the city's premise that the commissioner's decision amounted to an adjudication; they contend that the commissioner did not actually "adjudicate a boundary dispute," because the state had no dispute with Tanad-gusix, and there could not have been a boundary dispute between the city and Ta-nadgusix since the city did not yet own the tidelands. We agree that the commissioner's decision was not an adjudication, though not for the reasons advanced by Tanadgusix and the state. The core issue addressed by the commissioner was whether the state should convey its tidelands to the city under AS 38.05.825. As already mentioned, this statute required the department to convey the state's interest in using these tidelands unless the commissioner expressly found "that the public interest in retaining state ownership in the land clearly outweighs the municipality's interest in obtaining the land." Here, Tanadgusix objected to the requested conveyance; the controversy over the precise boundary of the requested conveyance arose as a collateral issue in Tanadgusix's effort to persuade the commissioner that conveying the tidelands would not serve the public interest. No provision in AS 38.05.825 authorized the commissioner to adjudicate this collateral point. Indeed, this statute does not seem to require the department to take any adjudicative action at all. We have typically described administrative best-interest findings like the one required in AS 88.05.825 as involving executive action rather than administrative adjudication. The manner in which the department reached its decision in this case tends to confirm that its action was not an adjudication. In Johnson v. Alaska State Department of Fish and Game, we described the essential elements of an administrative adjudication: The essential elements of adjudication include adequate notice to persons to be bound by the adjudication, the parties' rights to present and rebut evidence and argument, a formulation of issues of law and fact in terms of specific parties and specific transactions, a rule of finality specifying the point in the proceeding when presentations end and a final decision is rendered, and any other procedural elements necessary for a conclusive determination of the matter in question. Here, after receiving the city's application, considering the department's preliminary findings and recommendation, and reviewing an initial round of comments and information from interested parties, the commissioner issued a "final finding and decision" granting the city's request for conveyance. While this decision adopted the 1986 BLM meander line as the appropriate method for describing the scope of the tidelands conveyance, the commissioner expressly cautioned that his choice of this method was not a conclusive determination of the conveyance's precise boundaries: The 1986 BLM meander line is the most practicable line which approximates the seaward boundary [of the conveyed tidelands]. The meander line does not establish the line of ownership; rather, it is the means of ascertaining the quantiltly of land embraced in the survey. (Emphasis added.) On reconsideration, the city and Tanadgu-six submitted additional comments and supporting documents regarding their views of the proper tidelands boundary. But no notice of disputed factual issues was issued by the department; no evidentiary hearing was conducted; neither party had an opportunity to cross-examine the other's evidence; and officials from the department informally engaged in off-record, ex parte consultations with various experts from each of the parties. The commissioner ultimately chose to use the current mean high water mark as the best method to describe the conveyed tidelands in making the conveyance. Yet at the same time, the commissioner made it clear that this method of description was not meant to establish a fixed and immutable boundary: "The MHW [mean high water] line is an ambulatory boundary, which moves as the natural shoreline changes resulting from aceretion and erosion." And nothing else in the commissioner's decision suggests that he intended to foreclose future action to resolve the incipient boundary dispute be tween the city and Tanadgusix. To the contrary, after finding no conclusive evidence that "a significant amount of fill was placed on the tidelands," the commissioner in effect avoided a definitive resolution of the dispute by choosing to rely on the statutory definition of tidelands-the current MHW line, as it exists at the time of survey -a generic and flexible definition. For purposes of complying with the requirements of AS 38.05.825, the commissioner had no need to be more precise, since the statute simply required a conveyance of tidelands within or contiguous to the city's boundaries. In sum, because the boundaries of "tideland" are statutorily defined in general terms and AS 38.05.825 simply calls for a conveyance of eligible tidelands, the statute did not require the commissioner to resolve the parties' incipient boundary dispute and it does not appear that the commissioner attempted to do so. The commissioner's decision on reconsideration properly recognized this distinction. We thus reject the city's characterization of the commissioner's decision on reconsideration as an adjudication of a boundary dispute between the city and Tanadgusix. Our conclusion on this point allays one of the city's main concerns: the possibility that the commissioner's ruling might be construed in the future to effectively "prejudge the outcome of any subsequent judicial proceedings concerning the boundary" of the city's tidelands. To be sure, our cases have followed "the modern and now generally accepted view that the doctrine of res judicata may be applied to adjudicative determinations made by administrative agencies." But we have consistently recognized that this doctrine can extend to an administrative agency's ruling only if "the administrative decision resulted from a procedure 'that seems an adequate substitute for judicial procedure' so that according preclusive effect to the administrative decision would be fair." Here, because the commissioner's decision on reconsideration was not an administrative adjudication and lacked the procedural safeguards to make it "an adequate substitute for judicial procedure," it could not properly be given preclusive effect in post-conveyance litigation to resolve a boundary dispute between the city and Ta-nadgusix. Accordingly, we hold that the commissioner's decision will not affect the procedural rights of either the city or Ta-nadgusix in future boundary litigation. Our ruling on this point raises one further question involving implementation. The view we adopt today suggests that, when a dispute arises over the extent of tidelands included in an AS 38.05.825 conveyance, the proper approach for the state to take will generally be to assign to the municipality, in conjunction with the conveyance, the state's claim over the disputed parcel. This approach will al low the municipality to establish the precise boundaries of the conveyed tidelands by pursuing a judicial action after the conveyance occurs. But the wording of the commissioner's decision, if rigidly applied, might make this approach problematic. The decision provides that "the . line to be used as the boundary of the tideland conveyance shall be the current MHW line." (Emphasis added.) If the state actually makes the conveyance by a deed limited to the current MHW line, then an argument might be raised in the post-conveyance action that the boundaries described in the city's deed define the full extent of the city's property regardless of whether those boundaries might describe as uplands property that should have been conveyed to the city as tidelands. To avoid this potential problem, we think that if a controversy over boundaries arises after the new survey is completed, it would be appropriate-and permissible-for the state to convey the disputed property to the city via quitelaim pending adjudication of the disputed boundaries. IV. CONCLUSION For these reasons, we AFFIRM the commissioner's decision to uphold the tidelands conveyance using the current mean high water line as established by a survey to be conducted in accordance with 11 AAC 58.120(1). . The state acquired all submerged and tide lands within its territory from the federal government upon being admitted to statehood. PL. 85-503, § 6(m), 72 Stat. 339, 343 (1958) (applying the Submerged Lands Act of 1953 to Alaska). . A "meander line" does not mark the precise boundary line between tidelands and uplands, but rather comprises a series of straight lines marking the general contours of the shoreline. See Hawkins v. Alaska Freight Lines, Inc., 410 P.2d 992, 994 (Alaska 1966); see also Nordale v. Waxberg, 84 F.Supp. 1004, 1006 (D.Alaska 1949). . The parties use the terms "1983-84 BLM meander line" and "1986 BLM meander line" interchangeably. For clarity we will refer to it as the 1986 meander line. . The Tanadgusix Corporation was established under .the Alaska Native Claims Settlement Act for the Aleut community on St. Paul Island. Pribilof Bering Seafood, a wholly owned subsidiary of Tanadgusix, has joined in Tanadgusix's brief on appeal. . '"'Uplands" are the areas of land adjacent to and immediately above tidelands, which lie between the elevation of the mean high water line and the mean low water line. Tidelands are the area periodically covered by incoming and outgoing tides. See AS 38.05.965(23). . Ch. 95, § 2, SLA 1995, codified as amended at AS 38.05.825. . AS 38.05.825(a) provides: Unless the commissioner finds that the public interest in retaining state ownership of the land clearly outweighs the municipality's interest in obtaining the land, the commissioner shall convey to a municipality tide or submerged land requested by the municipality that is occupied or suitable for occupation and development. . See AS 38.05.825(c) & (d). The public trust doctrine states that tidelands conveyed to individuals are subject to the public's right to use the tidelands for navigation, commerce and fishing. "While patent holders are free to make such use of their property as will not unreasonably interfere with these continuing public easements, they are prohibited from any general attempt to exclude the public from the property by virtue of their title." CWC Fisheries, Inc. v. Bunker, 755 P.2d 1115, 1121 (Alaska 1988). . Compare Schafer v. Schnabel, 494 P.2d 802, 806-07 (Alaska 1972) (noting that "[the general rule applied to accretion is that it benefits the riparian owner") with Honsinger v. State, 642 P.2d 1352, 1353 (Alaska 1982) (noting that "avulsion, which refers to a sudden and perceptible change in the shoreline . does not change the legal boundary"). . In addition, the city argued that the current mean high water line is not the proper boundary because Tanadgusix cannot benefit from any accretion because there is a road between the uplands and the tidelands. . 11 AAC 53.120(1) defines "mean high tide" as follows: (A) in the case of unoccupied and unimproved tide and submerged lands not seaward of an incorporated municipality, the line of mean high tide must be determined in accordance with (B)-(D) of this subsection and used as the landward boundary; in the case of occupied and improved tide and submerged land, either the original meander line established before statehood ofr] the line of mean high tide, whichever is the higher, must be reestablished or determined and used as the landward boundary line; (B) for tideland surveys abutting any U.S. survey made after the date of statehood or in any location where no upland survey exists, the line of mean high tide must be determined by using National Geodetic Survey bench marks (or any other bench marks that have been established from that source), and the tide table datum; the upland boundary need not follow this line exactly, but may follow in a "meander" or "average" line of mean high tide; each end of the boundary must be established on the elevation of mean high tide; (C) if no National Geodetic Survey bench mark exists within one mile of the property being surveyed, the surveyor may, by using the tide tables for the immediate body of water and applying tidal readings he has taken, determine the line of mean high tide; and (D) in some cases, such as salt or mud flat areas where the average grade of the beach is one percent or less, and where determining the elevation of the line of mean high tide could create a lengthy horizontal distance, the director may nevertheless require that the true line of mean high tide be established using the procedures of (B) of this paragraph, regardless of the distance from a known bench mark. . AS 38.05.825(a). . See, eg., Laidlaw v. Anchorage Sch. Dist., 118 P.3d 1018, 1024 (Alaska 2005). . 836 P.2d 896, 908 n. 17 (Alaska 1991) (citing Resmarement (Seconp) or Jupements § 83(2) (1982)); see also Brandon v. State, Dep't of Corrections, 938 P.2d 1029, 1032-33 (Alaska 1997). . See AS 38.05.965(23) (defining "tidelands" as "land that is periodically covered by tidal water between the elevation of mean high water and mean low water"); AS 38.05.825(c) (requiring city to pay cost of pre-conveyance survey). . AS 38.05.825(a) directs the commissioner to convey "tide or submerged land requested by [a] municipality that is occupied or suitable for occupation and development if the . (1) land is within or contiguous to the boundaries of the municipality." . See AS 38.05.965(23) (quoted above at n. 15). . Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 (Alaska 1979). . Alaska Contracting & Consulting, Inc. v. Alaska Dep't of Labor, 8 P.3d 340, 344 (Alaska 2000) (quoting State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 192 (Alaska 1999)). . Because the city is entitled to all of the state's interest in the tidelands, one question that will arise if there is future litigation will be the extent to which the lands between the newly surveyed mean high water line and the 1986 BLM meander line were formed by processes that did not result in a transfer of ownership to Tanadgusix, as the upland owner. Because the new survey will not resolve this question, the new survey will not be determinative of the boundary between Tanadgusix's lands and those of the city. . Our conclusion that the commissioner's decision did not amount to an administrative adjudication makes it unnecessary to address the city's further contentions that the commissioner erred in declining to allow an evidentiary hearing and in failing to make adequate findings and conclusions. Both these arguments rely on the city's mistaken premise that the commissioner's deci-disputed sion conclusively adjudicated the boundaries of the tideland conveyance.

8412230

Pamela Francis McLAUGHLIN, Lorimar Lance McLaughlin, and Larry Compton, Trustee, Appellants, v. Ken LOUGEE; Hughes, Thorsness, Gantz, Powell & Brundin; and its successor in interest, Hughes, Thorsness, Powell, Huddleston & Bauman, L.L.C., Appellees

McLaughlin v. Lougee

2006-06-09

No. S-11423

267

280

137 P.3d 267

137

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:33:21.910300+00:00

CAP

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

Pamela Francis McLAUGHLIN, Lorimar Lance McLaughlin, and Larry Compton, Trustee, Appellants, v. Ken LOUGEE; Hughes, Thorsness, Gantz, Powell & Brundin; and its successor in interest, Hughes, Thorsness, Powell, Huddleston & Bauman, L.L.C., Appellees.

Pamela Francis McLAUGHLIN, Lorimar Lance McLaughlin, and Larry Compton, Trustee, Appellants, v. Ken LOUGEE; Hughes, Thorsness, Gantz, Powell & Brundin; and its successor in interest, Hughes, Thorsness, Powell, Huddleston & Bauman, L.L.C., Appellees. No. S-11423. Supreme Court of Alaska. June 9, 2006. Michael W. Flanigan, Chris Bataille, Walther & Flanigan, Anchorage, for Appellants. William M. Bankston, Chris D. Gronning, Bankston, Gronning, O'Hara, Sedor, Mills, Givens & Heaphey, P.C., Anchorage, for Ap-pellees. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

8342

53094

OPINION MATTHEWS, Justice. The question in this case is whether a defendant against whom a judgment in a tort case has been entered can later file an action against a third person who was not a party to the original action in order to require the third person to pay a part of the judgment. The superior court held that such an action may not be maintained because (1) under the law applicable when the alleged tortious conduct occurred statutory contribution had been eliminated and (2) a defendant seeking to allocate fault to a third party can do so only in the original action. We disagree because the applicable law did not preclude common law contribution claims against defendants whose responsibility was not considered in an original action, nor did it require that all claims seeking to allocate fault be brought in a single action. I. FACTS AND PROCEEDINGS Appellants are Pamela and Lorimar McLaughlin, and Larry Compton, the trustee in bankruptey of the MeLaughlins' bankrupt estate. They sued attorney Ken Lougee and his firm, Hughes, Thorsness, Gantz, Powell & Brundin, and its successor firm, as writ of execution assignees of claims belonging to their former attorney Arthur Robson. In this opinion we collectively refer to the appellants as the McLaughlins and the appellees as Hughes Thorsness. The superior court stated the underlying facts of the case as follows: Arthur Lyle Robson ("Robson") represented the McLaughlins between 1990 and 1995 in a series of legal actions concerning a property formerly owned by the McLaughlins. The McLaughlins lost title to their property through foreclosure due to malpractice on the part of Robson. Robson however did not disclose to the McLaughlins that they had lost viable title. During the pendency of that litigation, Robson also represented the McLaughlins in their negotiations with a foreign investor, Okumura, who invested monies based on Robson's misrepresentations as to the legal status of the property. Robson also represented the McLaughlins in a subsequent lawsuit brought by Okumura against the McLaughlins based on misrepresentations made during the negotiations between the parties. Although Robson knew he was responsible for the liability of the McLaughlins based on his misrepresentations, Robson defended the MceLaughlins without bringing out his culpability for the misrepresentations. As a result of Robson's conduct, the McLaughlins were found liable to Okumura in the amount of $1,008,536.05. The McLaughlins then filed for bankruptcy on June 28, 1998, and Robson continued to represent them. After Okumura obtained a judgment against the McLaughlins, Okumura then brought a similar action against Robson alleging misrepresentation, which the court in that case found had occurred as a mat ter of law. In this suit, defendant law firm Hughes Thorsness represented Robson. It is during the course of this representation that the McLaughlins allege Hughes Thorsness committed acts that constituted an illegal co-conspiracy with Robson to deprive the McLaughlins of their legal rights. This claim is based at least in part on the allegation that Hughes Thorsness, as part of a scheme to defraud the McLaughlins, prepared for Robson's signature (and without the MceLaughlins' informed consent) a pleading in the McLaughlins' bankruptey withdrawing the McLaughling' motion to clarify that they still owned legal malpractice claims against Robson. Plaintiffs allege that Hughes Thorsness was aware that Robson could not ethically agree on behalf of the MclLaughlins to withdraw their motion claiming that they still had claims against Robson, yet Hughes Thorsness prepared documents for Robson's signature to do just that. Plaintiffs allege that the purpose of Hughes Thorsness's actions were to further Robson's fraudulent scheme to avoid personal liability for his actions. Although the withdrawal of the motion was later reversed and the Bankruptey Court eventually held that Robson could be sued by the MeLaughlins and the Bankruptcy Estate, Robson's malpractice liability insurance had been exhausted due to the settlement of Okumura's claims against Robson as negotiated by Hughes Thorsness. Plaintiffs claim that as a proximate result of the combined conduct of Robson and the defendants, Robson's liability insurance, which should have been used to obtain a joint release from Okumura in favor of both Robson and McLaughlins or to pay Okumura's claims down for the benefit of both Robson and the McLaugh-lins, was spent only obtaining a release of Robson from the Okumura claims. The McLaughlins subsequently filed an action against Robson for malpractice and fraud and obtained a judgment against Robson in the amount of $8,571,429.33 on October 2, 2001, in case number 4FA-96-2602 Civil. To collect on this judgment, the McLaughlins executed on all claims that Robson had against the current defendants, which claims are alleged by the McLaughlins to have been "assigned" to them by court order. Pursuant to AS 09.17.080, plaintiffs allege that Robson had claims for allocation that could have been asserted against defendants following the entry of judgment in 4FA-96-2602 Civil and that defendants are liable for their percentage of fault in causing the harm. The McLaughlins sued in September of 2003, claiming that Hughes Thorsness was liable to them as Robson's assignees for some portion of their judgment against Robson in proportion to Hughes Thorsness's responsibility for Robson's conduct. Hughes Thorsness promptly filed three separate motions to dismiss claiming that (1) assignments of legal malpractice claims are not permitted, (2) the applicable statute of limitations had expired, and (8) a defendant such as Robson cannot seek to require others to share fault and liability except in the initial action in which he is sued. Ruling only on the last ground, the superior court ordered the complaint dismissed. The superior court reasoned that the McLaughling' case "is effectively one for contribution and because contribution actions were repealed by the 1989 voter initiative establishing proportionate fault, Alaska Rule of Civil Procedure 12(b)(6) bars the instant action." The court determined that the relevant fault allocation statute, AS 09.17.080 (1989), "does not create a separate cause of action in which a defendant can obtain an affirmative recovery...." "All that [AS 09.17.080 (1989) ] allows a defendant to do is join other persons who may be liable to a claimant, and to have a factual determination made of the percentages of fault for each responsible person." Consequently, the court held that the McLaughlins as assignees of Robson could not initiate a post-judgment action against Hughes Thorsness. II. STANDARD OF REVIEW Decisions granting motions to dismiss for failure to state a claim upon which relief can be granted are reviewed de novo and the allegations contained in the complaint are accepted as true for purposes of review. Such decisions will be affirmed only if it appears that the claimants "can prove no set of facts which would entitle them to relief." III. RELEVANT STATUTES Because the alleged tortious conduct in this case occurred between 1998 and 1995, the 1989 tort reform initiative in effect from 1989 to 1997 governs this case. This initiative enacted a comparative fault-several liability system and repealed Alaska's version of the Uniform Contribution Among Joint Tortfeasors Act (Uniform Contribution Act). As modified by the 1989 initiative, AS 09.17.080 provided: (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.16.040, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.16.040. (b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished. (c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.16.040, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault. (d) The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault. Under the initiative, AS 09.17.900 defined "fault" as follows: In this chapter "fault" includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be lable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault.[ ] Under Alaska's version of the Uniform Contribution Act, repealed by the 1989 initiative, a tortfeasor that paid more than its "pro rata" share of the common liability had a right of contribution against other tortfea-sors. Each tortfeasor was liable for contribution "pro rata," that is per capita. The act provided that in determining a defendant's share of damages "relative degrees of fault shall not be considered." IV. ARGUMENTS ON APPEAL The MceLaughlins argue that the precedents of this court indicate that a defendant may bring suit against a third party to allocate fault and liability after a judgment is entered against it. They note that such a result was allowed in Borg-Warner Corp. v. Avco Corp., and argue that even though Borg-Warner was decided under an earlier, and significantly different, version of AS 09.17.080, essentially the same result was endorsed in Universal Motors Inc. v. Neary, a case arising under the 1989 initiative. They also contend that our decision in Alaska General Alarm, Inc. v. Grinnell indicates that while a defendant has the option of impleading third-party defendants in the original action, a defendant is not required to do so and may instead bring a separate action. Hughes Thorsness's position is that Robson, as the defendant in the MeLaughling' case against him for malpractice and fraud, had an obligation to file a third-party action in that case against Hughes Thorgness or be barred from subsequently suing Hughes Thorsness. "Robson's decision not to bring Hughes Thorsness into McLaughlins' initial action for fault allocation purposes, before final judgment, extinguishes any fault allocation rights." Hughes Thorsness also argues that Borg-Warner is inapplicable because the claim asserted by Borg-Warner was one for contribution, as is the MceLaughling' claim, and contribution has been abolished. Hughes Thorsness distinguishes Neary, arguing that while that case allowed a plaintiff to bring a second action against defendants not named in the first action, that "does not mean a defendant can bring a separate, see-ond action...." Hughes Thorsness also argues that there are reasons of judicial economy for requiring fault allocation to take place in only one action. v. DISCUSSION A. Summary We conclude, for the reasons that follow, that the 1989 initiative does not bar a defendant's post-judgment separate action against a third party that seeks to allocate a share of the defendant's fault and liability to the third party. Our decision in Neary permitting post-judgment separate actions by plaintiffs largely governs this point. The Neary rationale cannot fairly be limited to establishing a right that runs to plaintiffs, but not defendants. We agree with Hughes Thorsness's argument that a separate action brought by a defendant against a third party is, in essence, a claim for contribution. We do not agree, however, that all contribution claims were prohibited by the 1989 initiative. The initiative repealed Alaska's Uniform Contribution Act. This was necessary because the Uniform Contribution Act's system of per capita loss sharing among defendants was inconsistent with the comparative fault-several liability system established by the 1989 initiative. But the repeal merely meant that Alaska no longer had a statutory contribution system. It did not mean that common law contribution that is consistent with comparative fault and several lability would be unavailable. The need for a contribution remedy has been greatly reduced by Civil Rule 14(c), which allows defendants to bring third-party claims for equitable apportionment in the original tort case. By using this procedure a defendant can avoid liability for a disproportionate share of the plaintiff's damages by ensuring that the relative fault of all responsible actors is determined by the jury. But sometimes it is not expedient or even possible to implead third-party defendants. In such cases, an action for common law contribution can serve to fairly apportion damages according to the relative fault of all responsible persons and thus further the underlying objective of a comparative fault-several lability system. We conclude that common law contribution is an appropriate available remedy that is consistent with the 1989 initiative. We remand this case for further proceedings in order to determine whether a common law contribution claim can be maintained under the facts and cireumstances of this case. B. AS 09.17.080 Does Not Require That All Claims of Either Plaintiffs or Defendants. Be Litigated in a Single Case. ' With the advent of comparative fault and several liability some courts have held that all claims must be tried in one action. But this court has declined to adopt this rule. In Neary the appellant advocated the adoption of the so-called "one-action" rule that was developed by the Supreme Court of Kansas and had been adopted by some other jurisdictions. In Neary the plaintiff was struck by a vehicle driven by a young motorist who was both unlicensed and uninsured. The plaintiff sued the motorist's parents for negligent entrustment. This suit was dismissed on summary judgment. Then the plaintiff filed a separate suit against Universal Motors, claiming that Universal had negligently sold the vehicle involved in the accident to the unlicensed motorist. Universal moved to dismiss, claiming that Alaska should adopt a "one-action" rule under which the fault of all potentially responsible parties must be tried in a single case. We held, in language that is broad enough to apply to separate actions brought by defendants as well as plaintiffs, that "AS 09.17.080 does not mandate a single action for. each injury or accident." Our primary rationale was that the model act on which AS 09.17.080 is based contemplated the possibility of subsequent litigation against other potential tortfeasors. This rationale was also expressed in terms applicable to separate actions brought either by plaintiffs or defendants: Subsection (a) of the statute derives from Section 2(a) of the Uniform Comparative Fault Act of 1977. The comment pertaining to the latter indicates that the drafters of the Uniform Act contemplated the possibility of subsequent suits against other potential tortfeasors: The limitation to parties to the action means ignoring other persons who may have been at fault with regard to the particular injury but who have not been joined as parties. This is a deliberate decision. It cannot be told with certainty whether that person was actually at fault or what amount of fault should be attributed to him, or whether he will ever be sued, or whether the statute of limitations will run on him, ete. An attempt to settle these matters in a suit to which he is not a party would not be binding on him. In construing statutes taken from model acts we generally regard the commentary to the model act as a reliable guide to the statute's meaning. We so regard the commentary quoted above and conclude that our statute was not intended to preclude separate actions against different tortfea-sors. [ ] The leading case propounding the one-action rule is Albertson v. Volkswagenwerk Ak-tiengesellschoft. The court outlined the rule in terms highlighting one of its drawbacks: "Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible. Those not joined as parties or for determination of fault escape liability." Albertson involved a see-ond action brought by a plaintiff, but the one-action rule has also been applied to separate actions brought by defendants. In Benner v. Wichman we held that fault should be assessed in an action under AS 09.17.080 only against "parties to an action, including third-party defendants and settling parties" and not against other persons who might be responsible for the accident. By contrast, in Kansas the fault of all potentially responsible persons-sometimes referred to in Kansas cases as "phantom" parties-is assessed. This feature is an important reason for the one-action rule. By assessing the fault of absent responsible persons as well as the parties to the action, the jury has assessed all the fault of all the actors responsible for the accident. "The proportionate fault attributable to 'phantom' parties reduces the amount of damages attributable to the defendants in an action, in a sense indemnifying those defendants for the damages caused by the phantoms. The statute assures that each defendant will bear only his proportionate share of the loss." In Alaska there is no reduction attributable to the fault of non-parties." In cases where non-parties may be at fault, it cannot be said that each defendant will bear only his proportionate share of the loss. Thus, this reason for applying the one-action rule does not apply to Alaska. An A.L.R. annotation has noted the importance of this distinction. Referring to jurisdictions that attribute fault to "phantom" parties the annotation states: Courts that have expressed the view that all fault is allocated in one action under the doctrine of comparative negli-genee have held that prior explicit or implicit determinations of fault in comparative negligence proceedings served to preclude later actions arising from the same incidents against defendants not named in the prior proceedings. . . . [ ] By contrast, as to jurisdictions such as Alaska, the annotation states: In jurisdictions in which the one-action rule has not been applied, some courts have held that prior determinations of fault in comparative negligence proceedings did not serve to preclude later actions arising from the same incidents against defendants not named in the prior proceedings.... The courts emphasized that the comparative fault with respect to the non-named defendants had never been determined in the prior proceedings.[ ] Hughes Thorsness's argument that reasons of judicial economy should preclude defendants from bringing separate actions is not substantially different from the argument that was made and rejected in Neary. Neary's rationale concerning the judicial economy argument also applies here: From a judicial economy standpoint, it is generally true that one trial is preferable to multiple trials. But existing parties already possess a strong incentive to name all potential tortfeasors. As we observed in Benner: Both plaintiff and defendants will have significant incentive for joining available defendants who may be liable. The more parties joined whose fault contributed to the injury, the smaller the percentage of fault allocated to each of the other parties, whether plaintiff or defendant. Further, one drawback of the one-action rule is that it may result in the needless joinder of parties whose fault is remote. Whether the benefit from the additional incentive for joining all potentially liable actors supplied by the one-action rule is outweighed by the detriment resulting from the complications of multi-party litigation is a policy question best left to the legislature.[ ] Our observation in Neary that there are drawbacks to a one-action rule bears further comment. Adding numerous parties to a lawsuit obviously has a strong potential to delay litigation and make it more expensive. Relatedly, the liability issues in the case against an unjoined defendant may be completely different from those in the original action. In addition, the fault of a responsible entity may not be discovered, or understood, in time to join it as a defendant, or a third-party defendant, in the original action. Moreover, some third-party claims are, practically speaking, inconsistent with a party's position in the original action and may serve to undermine it. Other third-party claims may needlessly and unfairly stress a valuable relationship. Hughes Thorsness also argues that if defendants are allowed to bring separate actions the third-party defendant "would be entitled to bring in all responsible parties," including the original plaintiff, and that collateral estoppel would not prevent the third-party defendant from relitigating any issue. Hughes Thorsness is not correct that other defendants or the plaintiff in the original action would need to become parties in the second action. Prior judgments and settlements would not be disturbed by the second action. But Hughes Thorsness is correct that third-party defendants will not ordinarily be barred from relitigating prior fault allocations or damages. While such relitigation will not affect the finality of the prior judgment or settlements, it may influence what the third-party defendant is required to pay. The third-party defendant's objective in relit-igating fault would be to show it was either not responsible at all or only responsible for a relatively low percentage of the total fault that contributed to the loss. A reassessment of the fault of the other responsible parties is relevant to this determination. The third-party defendant can also minimize its damages by attempting to prove that the plaintiff's damages are lower than the amount assessed in the first suit. Hughes Thorsness's observation that the third-party defendant will be arguing against "empty chairs" in attempting to minimize its responsibility by aseribing fault to absent prior parties is also correct. But this is not a disadvantage to the third-party defendant. Allocating fault to absent parties is an easier task than allocating fault to parties who are present and defending their conduct. The "empty chair" burden thus falls on the defendant who initiates the separate action. This is not generally unfair because this burden is the product of the defendant's choice not to join the third-party defendant in the original action. In sum, the 1989 initiative does not require that the fault of all parties be tried in a single case. We so held in Neary. The reasons supporting that conclusion-legislative intent, the complexity, expense, and delay of multi-party litigation, and the fact that the second litigation will not involuntarily involve others who have settled or whose claims or defenses have been adjudicated-apply to separate claims brought by defendants as well as plaintiffs. C. Common Law Contribution Is Available. The superior court held that the McLaugh-lins' action as the assignees of claims held by Robson against Hughes Thorsness was "effectively one for contribution and because contribution actions were repealed by the 1989 voter initiative establishing proportionate fault ." the action could not be maintained. We agree that the action can fairly be described as seeking contribution. Robson's assignees seek to allocate a share of Robson's fault to Hughes Thorsness which is alleged to have acted concurrently with Robson in causing harm to the MceLaughlins. The assignees claim that Robson has been held one hundred percent at fault for their loss, whereas another tortfeasor, Hughes Thorsness, was also responsible and should reimburse Robson. Although this remedy could be given any number of names, it is effectively contribution. We do not agree, however, that the 1989 initiative was intended to bar common law contribution. As already noted, the initiative repealed Alaska's version of the Uniform Contribution Act. This repeal was necessary because the act called for contribution on a per capita rather than a fault-proportional basis. The Uniform Contribution Act was therefore inconsistent with the comparative fault-several liability system of the 1989 initiative. The injustice of retaining the per capita contribution system is readily illustrated by reference to the facts of Ehredt v. DeHavilland Aircraft Co. of Canada, Ltd. In Ehredt the jury found that the plaintiff was ten percent at fault, defendant Ehredt fifteen percent at fault, and defendant DeHavilland seventy-five percent at fault. DeHavilland paid the plaintiff roughly $2 million for the release of the whole amount of the defendants' joint and several liability and then sought half of that sum from Ehredt in a claim for contribution. We held, based on the per capita measure mandated in the Uniform Contribution Act, that DeHavilland was entitled to a full fifty percent of the sum it paid even though Ehredt was only fifteen percent responsible. Under a proportional fault contribution system Ehredt would have been liable for only about $333,333 (the product of 15/90 x 2,000,000) rather than the $1,000,000 it had to pay using the Uniform Contribution Act's pro-rata measure. This example, from a case that was decided not long before the initiative was proposed, illustrates how the pro-rata measure of contribution liability contained in the Uniform Contribution Act would have undermined the comparative fault-several liability system enacted by the 1989 initiative. But the repeal of the Uniform Contribution Act meant only that Alaska's pro-rata statutory contribution system was no longer in effect. The repeal does not imply rejection of the principle of contribution based on proportional fault. We recognized this in Alaska General Alarm, Inc. v. Grinnell. We held there that a tort defendant's third-party claim for equitable apportionment under Civil Rule 14(c), filed after the statute of limitations governing the original action had expired, was not time-barred. We recognized that such claims were similar to contribution actions: "At its root" each "claim is a mechanism for spreading damage." To illustrate this similarity we observed that the draft Restatement (Third) of Torts preserved contribution as a remedy under systems like Alaska's in cases where fewer than all those responsible had been joined: Indeed, the draft Restatement (Third) of Torts recognizes that even under apportioned liability a defendant sued in an action in which fewer than all the relevant persons have been joined might be liable for more than its percentage of fault and thus might be entitled to "contribution." See Proposed Final Draft, REstaTEMENT (THirp) or Torts § 33 emt. £ (1999).[ ] We concluded that a defendant's equitable apportionment claim, like contribution, did not accrue when the underlying tort was committed, but upon settlement or judgment concerning the underlying claim. This was true even though the equitable apportionment claim could be joined for litigation with the underlying claim before it technically accrued. One complication was that with the repeal of the Uniform Contribution Act the separate contribution statute of limitations was also repealed. But we held that this repeal did not imply a rejection of third-party procedures "well established in this state and the common law." "The scant legislative history demonstrates that the initiative's supporters were concerned almost exclusively with ensuring that defendants would be liable only for their share of fault." Most other states have contribution systems. In many states contribution is statutory. But in a substantial number of states contribution has been developed as a matter of common law. One of the leading cases is American Motorcycle Ass'n v. Superior Court of Los Angeles County. American Motorcycle was decided three years after California by judicial decision abolished the all-or-nothing rule of contributory negligence in favor of a comparative negligence system. In American Motorcycle the court adopted a rule of comparative contribution, termed partial equitable indemnity, "under which liability among multiple tortfeasors may be apportioned on a comparative negligence basis." This rule was found necessary in order to further the objective of the newly adopted comparative negligence system "under which liability for damage will be borne by those whose negli gence caused it in direct proportion to their respective fault." The court further observed that its holding represented "an evo-Iutionary development of the common law" equitable indemnity doctrine that furthered "an equitable distribution of loss among multiple tortfeasors." American Motorcycle adopted a contribution remedy even though California had an existing contribution statute. The statute was applicable only to joint judgment debtors and, like Alaska's repealed statute, called for contribution per capita rather than proportional to fault. The American Motorcycle court observed that the contribution statute merely represented an effort to lessen the harshness of the early common law rule that prohibited contribution. The statute was not intended "to preempt the field or to foreclose future judicial developments which further the act's principal purpose of ameliorating the harshness and inequity of the old no contribution rule." The courts of New York and Missouri have also adopted common law contribution under similar cireumstances as in California, even though those states also had contribution statutes which provided for a limited contribution remedy. Contribution in these states, as in most other states, may be asserted in the original tort action or in a separate action. Common law contribution is also permitted by the Restatement of Torts. The current Restatement makes it clear that contribution has a viable role in several lability jurisdictions where the contribution defendant's responsibility was not considered in the original action. Comment f to section 23 of the current Restatement states: If a person is otherwise entitled to recover contribution, contribution is limited to the amount that person pays to the plaintiff above that person's percentage of responsibility. In a jurisdiction where a defendant is only severally liable ., a defendant normally would pay no more than its own percentage share and would not be entitled to contribution. Even in a jurisdiction that does not use joint and several liability, however, a severally liable defendant might be sued with less than all of the relevant persons and be liable for more than its own percentages of responsibility, and therefore be entitled to contribution. See Comment e and Illustration 4. Comment e states in part: "Normally, liability for the same indivisible injury will result from joint and several liability . but a severally liable person might sometimes be liable for the same indivisible injury caused by another severally liable person. Such a person may be entitled to contribution." ILlustration 4 following this comment gives the following example pertaining to contribution in a severally liable jurisdiction: A is injured jointly by B, C, and D and sues B and C. In a jurisdiction that has rejected joint and several liability, B and C are each held severally liable for A's damages without any consideration of D's responsibility. B and C have been held lia ble for the same indivisible harm caused by D and may be entitled to contribution from D. In our view contribution should be available as a common law remedy because it furthers the goal of apportioning of tort losses in accordance with each responsible person's percentage of fault. Adopting this remedy for Alaska is a logical concomitant of two aspects of our law. The first is the holding of Benner v. Wichman. Since the fault of non-parties is not assessed in the original trial, some defendants may be made to bear more than what their share of fault would be if the responsibility of all those at fault were considered. The second is the rule of Universal Motors, Inc. v. Neary. Our rejection of a one-action rule leaves little reason to insist that defendants seeking to spread their damages must bring their claims under Civil Rule 14(c) rather than independently. D. Issues on Remand Although we have decided that common law contribution is available in appropriate cases, it is not clear that this is a case to which the remedy applies. The McLaughlins did not style their complaint explicitly as stating a claim for contribution. But they did allege that "Robson had claims for allocation" and cited in their complaint as a part of this allegation Borg-Warner v. Avco Corp. The claim in Borg-Warner was a contribution claim. This allegation plus the citation of the case gave Hughes Thorsness fair notice of the nature of their claim. Common law contribution requires a discharge of the liability of the contribution defendant and payment by the contribution plaintiff in excess of the contribution plaintiff's comparative share of responsibility. The complaint does not allege either discharge or payment by Robson. But we must ask under the standard by which motions to dismiss are reviewed whether the McLaughlins "can prove no set of facts which would entitle them to" maintain a contribution claim. On the ree-ord before us we cannot give an affirmative answer to this question. It is conceivable that the McLaughlins have successfully executed on Robson's personal assets. Further, whether the discharge requirement may be met by the running of a statute of limitations may be an open question. Hughes Thorsness also argues that contribution cannot be available in this case because there can be no fault allocation between intentional tortfeasors. Given that under the initiative "fault" is defined in terms of negligent or reckless conduct with out mentioning intentionality, there may be merit to this argument. On the other hand, we have indicated that an expansive interpretation of "intentional" is inconsistent with the comparative negligence principles contained in AS 09.17.080. In Borg-Warner we stated that AS 09.17.900 "clearly contemplates a relative allocation of fault between all unintentional tortfeasors, whether negligent, grossly negligent or willful and wanton" and excluded only tortfeasors "who act with the specific intent to cause the resultant harm." Reviewing the complaint in light of the applicable standard of review for motions to dismiss, we cannot say that the conduct complained of on the part of Robson and Hughes Thorsness necessarily meets the narrow standard of intentionality that goes beyond comparability under AS 09.17.900. The parties also seek rulings on the motions to dismiss that the superior court did not decide relating to the assignability of legal malpractice claims and the statute of limitations. We decline the invitation to rule on these matters and believe that both subjects would benefit from further briefing and development in the superior court. The McLaughlins have also challenged as excessive the award of fees and costs. Our reversal of the grant of the motion to dismiss moots this issue. VIL _ CONCLUSION For the above reasons, the judgment is REVERSED and this case is REMANDED for further proceedings. . Elements of the current case are also discussed in Compton v. Chatanika Gold Camp Props., 988 P.2d 598 (Alaska 1999). . Valdez Fisheries Dev. Ass'n, Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 664 (Alaska 2002). . Id. . We refer to the initiative as the 1989 initiative because it became effective in 1989, although it was passed in 1988. Initiative 87TOR2, Relating to Civil Liability, was passed on November 8, 1988. It remained in effect until 1997 when the legislature substantially amended AS 09.17.080. Our holding in this case is limited to cases controlled by the 1989 initiative; we intimate no view as to its application to the post-1997 system. . This definition was amended in 1997, when the words "or intentional" were inserted after "reckless." Ch. 26, § 15, SLA 1997. . Former AS 09.16.020(1). These features were codified in Former AS 09.16.010(a) & (b) and Former AS 09.16.020(1). Former AS 09.16.010(a) & (b) provided: (a) Except as otherwise provided in this chapter, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them, even though judgment has not been recovered against all or any of them. (b) The right of contribution exists only in favor of a tortfeasor who has paid more than that tortfeasor's pro rata share of the common liability, and the total recovery of that tortfea-sor is limited to the amount paid in excess of the pro rata share. No tortfeasor is compelled to make contribution beyond the tortfeasor's pro rata share of the entire liability. Former AS 09.16.020(1) provided: "In determining pro-rata shares of tortfeasors in the entire liability (1) their relative degrees of fault shall not be considered{.]" . 850 P.2d 628 (Alaska 1993). . Before the 1989 initiative became effective, subsection .080(d) provided for modified joint and several liability. A party allocated less than fifty percent of the total fault was liable for no more than twice the total fault allocated to that party. The initiative changed subsection (d) by mandating several liability according to a party's percentage of fault. Subsections (a)-(c) of .080 were not changed, except for changes in statutory citations necessitated by a recodification. . 984 P.2d 515 (Alaska 1999). . 1 P.3d 98 (Alaska 2000). . The McLaughlins also argue that this suit is not barred by the statute of limitations or by a rule prohibiting the assignability of legal malpractice claims. They also contend that the award of fees and costs in this case were excessive. We do not reach these claims for reasons explained below. See infra page 280. . Hughes Thorsness also argues that the underlying torts for which allocation is sought, "fraud" and "conspiracy," are intentional torts for which there can be no fault allocation. We briefly address this claim below at page 280. Hughes Thorsness additionally asserts that for policy reasons Robson's claim should not be assignable. We do not reach this claim for reasons asserted on page 280 infra. . See generally David Polin, Annotation, Comparative Negligence: Judgment Allocating Fault in Action Against Less Than all Potential Defendants as Precluding Subsequent Action Against Parties not Sued in Original Action, 4 ALR. 5th 753, 1992 WL 767547 (1992). . Neary, 984 P.2d at 516. . Id. . Id. ar 517. . Id. at 516-17 (citations omitted) (emphasis added). . 230 Kan. 368, 634 P.2d 1127 (Kan.1981). . Id. at 1132. . E.g., St. Francis Reg'l Med. Ctr., Inc. v. Critical Care, Inc., 997 F.Supp. 1413 (D.Kan.1997) (recognizing applicability of Kansas's one-action rule to settling defendant's attempt to sue third party to recoup settlement); Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985) (when a defendant participates in a settlement which operates as a full release of any and all claims the plaintiff may have had, the defendant may not compel successive tortfeasors against whom the plaintiff filed no claims to contribute to the settlement); Travelers Ins. Cos. v. Jackson Comme'ns Corp., 573 F.Supp. 1139 (D.Kan.1983) (applying Kansas law to prevent defendant insurer that settled claim from seeking indemnification from third party not sued by plaintiff); Ellis v. Union Pac. R.R. Co., 231 Kan. 182, 643 P.2d 158 (1982) (defendant in a comparative negligence action cannot settle a claim on behalf of a party and then seek contribution from that party in proportion to the percentage of causal negligence attributable to that party); Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978) (defendant who failed to make a claim against his co-defendant or against plaintiff was thereafter barred from asserting claim against co-defendant in subsequent action}. . 874 P.2d 949, 958 (Alaska 1994). . See, eg., Baird v. Phillips Petroleum Co., 535 F.Supp. 1371, 1378 (D.Kan.1982); Brown v. Keill, 224 Kan. 195, 580 P.2d 867, 876 (1978). . Travelers Ins., 573 F.Supp. at 1141. . Benner, 874 P.2d at 958. . Polin, supra note 13. . Id. at 759. . Id. at 760. . Neary, 984 P.2d at 517 (footnotes omitted). . A case demonstrating these drawbacks is discussed in Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633, 657-58 (1997) (Stein, J., concurring) (discussing Rapuano v. Altongy, No. A-003854-95T2 (N.J. Sup.Ct.App. Div., April 18, 1997), cert. denied, 697 A.2d 549 (N.J.1997)). The plaintiff in Rapuano was injured and required surgery as a result of a motor vehicle collision. He sued both drivers. Sixty days before the suit was settled he received a report indicating that malpractice was commilied in the surgery. He brought a separate suit against the surgeon, but this was dismissed based on New Jersey's version of the one-action rule, called the "entire controversy doctrine." Noting that "equitable consideration suggests that the sixty-day window between receipt of the expert's report and the settlement of the automobile accident litigation is too short a time to justify the extreme remedy of dismissal of the malpractice claim for failure to join it in the original action" and the "entirely distinct" nature of the liability issues, the concurring justice cited this case as one example in support of his conclusion that the judicial adoption of the one-action rule had been a mistake. . The "continuous representation" rule applied to statutes of limitations in some jurisdictions reflects the desirability of deferring litigation against a potentially responsible party where there is an ongoing relationship. See Wettanen v. Cowper, 749 P.2d 362, 365 & n. 1 (Alaska 1988); Beesley v. Van Doren, 873 P.2d 1280, 1283 n. 4 (Alaska 1994). The court in Olds v. Donnelly decided that New Jersey's version of the one-action rule should not be applied to lawyer malpractice cases. In reaching this conclusion the court relied on some reasons that are unique to the lawyer/client relationship, such as jeopardizing lawyer/client confidences. But the court also relied on reasons that are strategic and common to many ongoing relationships between defendants and potential third-party defendants: Because the first attorney is now a potential witness, that attorney's own interests are no longer aligned with those of the client. Although we do not suggest that potentially negligent attorneys would misrepresent facts, an attorney charged with malpractice, like any other litigant, would have an incentive to testify guardedly when sued by a former client. Thus, clients are put in the untenable position of either pursuing a claim against their attorney, whose negligence may never result in an unfavorable outcome, or forever foregoing a legal-malpractice action. Clients who are satisfied with their attorneys and want to maintain an otherwise satisfactory relationship may for[e]go the right to sue. That result does not provide the fairness that the entire controversy doctrine is designed to encourage. 696 A.2d at 642. . Hughes Thorsness appears to concede as much in a footnote in its brief: "Because the judgment between the original plaintiff and defendant could not be altered by case two, it would seem likely that plaintiff would not bother to contest case two, leaving the original defendants to assert the plaintiff's claim, and the new defendant to argue the 'empty chair.' " . See, eg., Neary, 984 P.2d at 518 (inconsistent results will not result from failure to adopt one-action rule); Durden v. Hydro Flame Corp., 295 Mont. 318, 983 P.2d 943, 949 (1999) (settlement by tortfeasor precludes claims for contribution against it); see also Restatement (Trirp) or Torts: Aprortionment or Lias. § 23(a) (2000) (prior settlement by defendant a bar to liability for contribution in subsequent action). . In California it is called "partial indemnity." See American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978). As the Restatement notes, this is effectively a contribution remedy. See Restatement (Teirp) or Torts: Apporrronment or Lng. § 23, reporter's note to cmt. (a) (2000). See also 18 Am.Jur.2d Contribution § 2 (2004) (noting that California uses the term "comparative indemnity" to refer to what most jurisdictions call contribution}. Wyoming refers to the same remedy as "comparative indemnity for equitable implied indemnity actions." Schneider Nat'l, Inc. v. Holland Hitch Co., 843 P.2d 561, 580 (Wyo.1992). . 705 P.2d 913, 917 (Alaska 1985). . Id. at917 n. 9. . Id. at 915. . Id. at 917. . 1 P.3d 98 (Alaska 2000). . Id. at 101-02. . Id. at 105. . Id. at 105 n. 40. Section 33 of the Proposed Final Draft is now § 23 of the Restatement. . Id. at 105. . Id. . Id. . Id. at 106. In Grinnell we also observed that 'it appears that voters repealed these provisions [the Uniform Contribution Act including the contribution statute of limitations] as superfluous-because a pure comparative fault regime rendered it theoretically unnecessary for defendants to seek postjudgment reimbursement, particularly given existing civil rules that generally permit liberal joinder of parties," Id. This observation did not take into account that the per capita basis for contribution liability under the Uniform Contribution Act was inconsistent with the comparative fault-several liability system of the 1989 initiative. The observation was dictum and does not appear to be supported by the initiative history set out in Grinnell. In any case, the Grinnell court did not conclude that the "superfluous" rationale meant that post-judgment actions were barred. Rather, in contemplation of such actions, the court stated that what statute of limitations would apply to such actions remained an open question: In the present case, Grinnell filed its third-party complaint for apportionment of damages prior to judgment. Because third-party actions of this kind are traditionally deemed to accrue upon judgment or settlement our conclusion that Grinnell's action is distinct from Mclntire's underlying action in tort makes it unnecessary to decide what period of limitation might apply to an apportionment action filed after judgment or settlement. Id. {eaphasis added). . See George's Radio, Inc. v. Capital Transit Co., 126 F.2d 219 (D.C.Cir.1942); American Motorcycle Ass'n v. Superior Court of Los Angeles County, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978); Skinner v. Reed-Prentice Div. Package Mach. Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (Iowa 1956); Quatray v. Wicker, 178 La. 289, 151 So. 208 (1933); Roberts v. American Chain & Cable Co., 259 A.2d 43 (Me.1969) Underwriters at Lloyds v. Smith, 166 Minn. 388, 208 N.W. 13 (1926); Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo.1982); Royal Indemnity Co. v. Aetna Cas. & Sur. Co., 193 Neb. 752, 229 N.W.2d 183 (1975); Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231 (1928); Davis v. Broad St. Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950); Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); Schneider Nat'l, Inc. v. Holland Hitch Co., 843 P.2d 561 (Wyo.1992). Some of these decisions were later legislatively codified. E.g., Illinois Joint Tortfeasor Contribution Act, 740 IIL Comp. Stat. 100/0.01 to 100/5; Uniform Contribution Among Tort-feasors Act, 42 Pa. Cons.Stat. § 8321-8327; Uniform Contribution Among Tort-feasors Act, Tenn.Code Ann. § 29-11-101 to 29-11-106. . 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978). . Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975). . 146 Cal.Rptr. 182, 578 P.2d at 902. . Id. (quoting Li, 119 Cal.Rptr. 858, 532 P.2d at 1232). . Id. . Id. at 913, 119 Cal.Rptr. 858, 532 P.2d 1226. . Id. at 908, 119 Cal.Rptr. 858, 532 P.2d 1226. . Id. at 914, 119 Cal.Rptr. 858, 532 P.2d 1226. . Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo.1982); Dole, 331 N.0Y.S.2d 382, 282 N.E.2d at 288. . Gem Developers v. Hallcraft Homes of San Diego, Inc., 213 Cal.App.3d 419, 261 Cal.Rptr. 626, 631 (1989) ("As part of the comparative equitable indemnity doctrine, a defendant who is sued has a right to bring in other torifeasors who are allegedly responsible for plaintiff's action through a cross-complaint or by a separate complaint for equitable indemnification."); Safeway Stores, 633 S.W.2d at 731-32 & n. 6; Schneider, 843 P.2d at 579 (additional proceedings permitted). . See Restatement (SEcomp) or Torts § 886A (1977), supplanted by Restatement (Trim) or Torts: AprortionmEnNt or Las. § 23 (2000). . RestatemEnt (Terp) or Torts: Apportionment or Limp. § 23, comment £, c & illustration 4 (2000). . This is the comment referred to by this court in Grinnell, 1 P.3d at 105 n. 40, as part of what was then the proposed final draft to the since-renumbered section 33. . See supra page 273-74. Benner held that fault should be assessed only against parties (including third-party defendants and settling parties), not other persons who might be responsible. We also observed in Berner that "the [1989] initiative did away with one category of claims-contribution." 874 P.2d at 956. This was a reference to the statutory per capita contribution system that was repealed by the initiative, not to common law contribution. . See supra pages 272-73, 274-75. . Under the federal rules on which our Civil Rules 14(a) and (b) are based impleader is always permissive and not compulsory. As Moore states: "The impleader rule provides that a defending party may implead, not that it shall or must" and "if a defending party fails to use impleader . that defending party remains free to sue the third-party separately to assert a right of indemnity or contribution." 3 James Ww. Moore Er Ar, Moore's Feperar Practice 14.03[3] (3d ed.1997) (emphasis in original). Although Civil Rule 14(c) is unique to Alaska it is, by its terms, permissive and it bears no indication that claims coming within its purview, unlike other claims covered by Civil Rule 14, are to be regarded as compulsory. . 850 P.2d 628 (Alaska 1993). . See Restatement (Tamp) or Torts: ArrortronmEnt or Liss. § 23(a) and (b) (2000): (a) When two or more persons are or may be liable for the same harm and one of them discharges the liability of another by settlement or discharge of judgment, the person discharging the liability is entitled to recover contribution from the other, unless the other previously had a valid settlement and release from the plaintiff. (b) A person entitled to recover contribution may recover no more than the amount paid to the plaintiff in excess of the person's comparative share of responsibility. . Valdez Fisheries Dev. Ass'n, Inc. v. Alyeska Pipeline Serv. Co., 45 P.3d 657, 664 (Alaska 2002). . See Criterion Ins. Co. v. Laitala, 658 P.2d 112, 118 (Alaska 1983) (Rabinowitz, J., concurring). . AS 09.17.900. In 1997 AS 09.17.900 was amended to include intentional acts or omissions. . See Borg-Warner, 850 P.2d at 633-34. . Id. at 633.

11583303

Ray T. BRIGGS and Gilbert D. Shea, Appellants, v. Alvin NEWTON and William Christensen, d/b/a R & R Plumbing and Heating, Appellees

Briggs v. Newton

1999-08-13

No. S-8375

1113

1122

984 P.2d 1113

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Ray T. BRIGGS and Gilbert D. Shea, Appellants, v. Alvin NEWTON and William Christensen, d/b/a R & R Plumbing and Heating, Appellees.

Ray T. BRIGGS and Gilbert D. Shea, Appellants, v. Alvin NEWTON and William Christensen, d/b/a R & R Plumbing and Heating, Appellees. No. S-8375. Supreme Court of Alaska. Aug. 13, 1999. Ray T. Briggs and Gilbert D. Shea, pro se, Palmer. Jerald M. Reichlin, Fortier & Mikko, P.C., for Appellee Alvin Newton. No appearance by Appellee William Christensen, d/b/a R & R Plumbing and Heating. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

4330

27014

OPINION FABE, Justice. I. INTRODUCTION In this appeal, two contractors, Ray Briggs and Gilbert Shea, claim that William Christensen interfered with their contractual relationship with business owner Jim Hess and made defamatory statements about them to Hess. The superior court granted summary judgment in favor of Christensen for three reasons: (1) Briggs lacked standing because the suit belonged to his bankruptcy estate and could only be brought by the trustee; (2) the interference claim was collaterally es-topped by a district court's finding in a prior suit that Briggs and Shea breached their contract with Hess; and (3) Christensen's comments, though defamatory, were privileged. We affirm. II. FACTS AND PROCEEDINGS In August 1991 Jim Hess entered into an oral contract with Ray Briggs to remodel Hess's business, the Anchorage Auction Company. According to Hess, he and Briggs agreed on a flat rate of $6,500 for Briggs's work. Briggs hired another contractor, Gilbert Shea, to assist him; the two worked on the job for approximately one week. At the end of the first week, Briggs and Shea presented a bill to Hess for that week's work. Hess refused to pay based on his understanding that they had signed a fixed price contract. Briggs and Shea immediately discontinued their remodeling work. Briggs and Shea claim that, after they began the remodeling work, Hess insisted they use William Christensen, d/b/a R & R Plumbing and Heating (R & R), to help them install a new furnace for Hess even though Christensen did not have a license to do furnace work. Hess had known Christensen for ten years and had worked with him previously. According to Briggs and Shea, they were forced to terminate their work for Hess rather than illegally hire an unlicensed subcontractor. After Briggs and Shea left the project, Hess contracted with Christensen to complete the construction for $3,500. Christensen later gave Hess a written summary of the job that estimated the actual cost to him of completing the work to be about $5,200. Christensen wrote to Hess that he felt "the job was purposely [underbid by Briggs] in order to obtain it, with the intention of going for more money [halfway] through the project." He claimed he "finished [the] job not for a profit but more from a concern that Jim and Virginia Hess had an office to work with, as everything was left in such a mess when [Briggs] walked off his job." In August 1991 Briggs reported to the City of Anchorage Building Permits Division that Christensen was performing furnace work for Hess that was beyond the scope of Christensen's city contracting license. In response, the City placed a stop work order on the project. Hess then entered into a contract for $3,500 with Superior Plumbing and Heating to complete the installation of forced air ducting and a new furnace. Later in 1991, Briggs and Shea filed a small claims action against Hess for the cost of labor and materials for the construction work they did complete on the barn. Hess filed a counterclaim against Briggs and Shea for the additional costs of completing the job. The case was eventually moved to district court. After a bench trial in January 1993, District Court Judge John R. Lohff concluded that: (1) the oral contract between Briggs and Hess was a fixed price contract for $6,500; (2) the contract called for Briggs and Shea to upgrade Hess's existing heating system using furnaces provided by Hess; (3) Briggs and Shea breached their contract with Hess by discontinuing work on the project; (4) although Hess could recover for costs incurred in finishing the project, Briggs and Shea could offset that recovery with the cost of their labor; and (5) many of Briggs' and Shea's assertions were "highly suspect and of dubious veracity" and, thus, neither Briggs nor Shea were entitled to costs or attorney's fees. Judge Lohff determined that Briggs was entitled to a net judgment against Hess of $240 and that Shea was entitled to $840. The superior court affirmed Judge Lohffs ruling. In July 1992, while the district court suit was pending, Briggs filed a voluntary petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. In his petition, Briggs listed his lawsuit against Hess's Anchorage Auction Company as personal property with a value of $3,217.49. One week after Briggs filed his petition for bankruptcy, Briggs and Shea filed a complaint against Christensen and the previous owner of R & R, Alvin Newton (collectively, Christensen), alleging intentional interference with their contract with Hess. Briggs and Shea also claimed that Christensen's statements to Hess about their work performance were defamatory. Superior Court Judge Eric Smith granted summary judgment to Christensen in September 1997 on both the interference and defamation claims. Judge Smith held that, because the district court judge had found in Briggs v. Hess that Briggs and Shea breached their contract with Hess, they were collaterally estopped from claiming in this case that Christensen interfered with their contract with Hess. Although Judge Smith concluded that Christensen made defamatory comments to Hess about Briggs and Shea, he also concluded that the "business relationship" privilege protected such comments. Finally, Judge Smith decided that Briggs lacked standing because the lawsuit was an asset of the bankruptcy estate and, thus, the only proper plaintiff was the bankruptcy trustee. Briggs and Shea appeal. III. STANDARD OF REVIEW We will uphold a grant of summary judgment only if no genuine issue of material fact exists in the record and the moving party is entitled to judgment as a matter of law. When we make such a determination, we draw all reasonable factual inferences in favor of the non-moving party. The applicability of collateral estop-pel to a particular set of facts is a legal question over which we exercise independent review. The issues of whether a party has standing and whether a statement is defamatory are also legal questions. To resolve them, "we apply our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION A. Briggs Lacks Standing Because the Suit Belongs to His Bankruptcy Estate. Christensen contends that because Briggs's claims against R & R are part of Briggs's bankruptcy estate, only the bankruptcy trustee has standing to raise the claims. We agree. Briggs's bankruptcy estate includes any cause of action belonging to him at the time he filed his petition for bankruptcy under 11 U.S.C. § 541. When a debtor's assets include causes of action, the bankruptcy trustee becomes the proper plaintiff to pursue those claims; only the trustee has standing to pursue causes of action that now belong to the estate. Briggs counters that the superior court may not dismiss the suit because federal courts have exclusive jurisdiction over bankruptcy proceedings. But this "exclusive jurisdiction" argument is irrelevant. Federal courts have exclusive jurisdiction over "all cases under title 11" of the United States Code, as well as original—but not exclusive—jurisdiction over other civil cases "arising under title 11, or arising in or related to cases under title 11." In turn, the case law analyzing the meaning of the terms "arising under" and "related to" generally concerns the limits on federal jurisdiction over such related civil cases. Thus, Briggs's argument proves, at most, that a federal court could exercise jurisdiction over his related contract claim. Because we conclude that Briggs lacks standing, we now must determine what the appropriate procedural remedy should be. Generally, "[wjhen a third party tries to assert an action still vested in the trustee, the court should dismiss the action." But some courts have allowed the bankruptcy trustee to substitute for the debtor as the real party in interest and to continue litigating the case without dismissal and refiling of the case. Here, the superior court held that, "[a]t a minimum, then, [Briggs's] case must be dismissed as to Mr. Briggs without prejudice.... " In light of our conclusion that Shea's claims are legally meritless, we believe that dismissal without prejudice of Briggs's claims is a more suitable remedy than a remand for substitution of the bankruptcy trustee as plaintiff. Thus, the remainder of our opinion reviewing the superior court's grant of summary judgment applies only to Shea and his claims against Newton and Christensen. B. Shea Failed to Raise a Genuine Issue of Material Fact on His Interference Claim. The superior court agreed with Christensen that because the district court in Briggs v. Hess ruled that Briggs and Shea breached their contract with Hess, the doctrine of collateral estoppel precludes asser tion of an interference claim against Christensen. But a party in breach may under certain circumstances bring a subsequent independent claim for contractual interference against a third party. Thus, we decline to adopt the superior court's reasoning that a party in breach may never sue a third party for contractual interference. We believe that summary judgment was nonetheless appropriate because, as Christensen argued in his motion for summary judgment, Shea failed to raise a genuine issue of material fact as to whether Christensen intentionally interfered with Briggs and Shea's contract with Hess. To sustain an interference claim, a plaintiff must show that "(1) a contract existed, (2) the defendant . knew of the contract and intended to induce a breach, (3) the contract was breached, (4) defendant's wrongful conduct engendered the breach, (5) the breach caused the plaintiffs damages, and (6) the defendant's conduct was not privileged or justified." Based on a reading of the initial complaint and the opposition to Christensen's motion for summary judgment, Shea sets forth two different theories in support of his interference claim. First, he claims that Christensen interfered with the relationship between Briggs and Shea and Hess by "advising [Hess] that the work performed by [them] was negligently performed." But Christensen made the allegedly defamatory statements to Hess after Briggs and Shea breached their contract with Hess by walking off the job, in an attempt to explain why the actual cost of finishing the work was higher than Briggs and Shea's bid. Logically, if Christensen made the comments after the breaeh, then Christensen could not have induced the breach by making such comments. Shea's alternative theory is that Christensen "directly conspired to induce a [breach]" by entering into a contract with Hess before Briggs and Shea quit the job in order to force Briggs and Shea to abandon the project and take the job for himself. But the record does not support this theory. Instead, all the evidence presented to the superior court suggests that Christensen was not competing with Briggs and Shea but rather was retained by Hess to assist them and that Christensen agreed to complete the unfinished work for Hess only after Briggs and Shea breached their contract with Hess. The district court in Briggs v. Hess found that Christensen "was to assist in the project" along with Briggs and Shea. Hess also testified in Briggs v. Hess that he asked Christensen to perform a cost estimate on the project prior to Hess hiring anyone, including Briggs and Shea, to do the furnace work and that Christensen "had some other jobs going" and had no intention of bidding for the project himself. Shea does not refute this testimony. Shea also presents no evidence that Christensen contracted with Hess to perform the project that Briggs and Shea were in the process of completing. On the contrary, the bill for Christensen's services makes clear that Christensen was to finish the office'work that Briggs and Shea left behind for a fiat fee of $3,500. After Briggs and Shea breached their contract with Hess, Christensen gave Hess a summary of job costs documenting that the actual cost of the project was $5,200. But he only charged Hess $3,500, presumably the original amount he was to receive for assisting Briggs and Shea with the furnace work. This job summary squares with Christensen's response to a request for admission that he "agreed to finish the cosmetic portions of the remodel for a sum of $3,500.00 so the auction could resume business." Shea attempts to use Christensen's assistance on the project as a means of justifying the breach of the contract with Hess. Shea reasoned in his opposition to Christensen's summary judgment motion that [rjegardless of the intent of [Christensen,] if . installation of a gas furnace by R & R was a part of [Briggs and Shea's] contract, then the performance of any alleged contract became illegal, [Briggs and Shea] could not complete the project, and not only had every right, but [were] required by law to cease work. But the district court in Briggs v. Hess nonetheless found that Briggs and Shea had breached their contract with Hess. Although the court in Briggs v, Hess did not explicitly address what motivated Briggs and Shea to breach the contract, it did note that they walked off the job immediately after Hess refused to pay them for a week's work because of his understanding that the contract was for a fixed price. Because of the district court's findings in Briggs v. Hess, Shea is now collaterally estopped from raising new defenses to the breach or arguing that a breach did not occur. A party may invoke nonmutual offensive collateral estoppel when the doctrine is asserted against the same party as in the previous action, when the issue to be precluded is identical to that in the first action, and when the issue was resolved by a final judgment on the merits in the first action. Here, Christensen would be asserting the doctrine against the same parties as in the first action — Briggs and Shea. The issue that Briggs and Shea sought to relitigate — whether they breached their contract with Hess— was identical to that in the first action. And the district court's ruling in Briggs v. Hess was final and on the merits. In short, the fact that Christensen may have misrepresented his licensing status to Hess and began assisting with furnace work prior to Briggs and Shea's completion of the project for Hess is insufficient as a matter of law to sustain an interference claim against Christensen. Shea offers no evidence that Christensen intended to induce a breach of the contract with Hess; he relies on conduct that occurred after he and Bidggs breached their contract with Hess by walking off the job. Thus, the superior court properly granted summary judgment on the interference claim. C. Shea Failed to Raise a Genuine Issue of Material Fact as to Whether Christensen's Statements Were Defamatory and Unprotected by Privilege. Shea next claims that Christensen made several defamatory statements about him and Briggs to Hess. Christensen submitted a job summary sheet to Hess in which he described the scope of the project and attempted to explain why the cost of finishing the project would probably exceed Briggs and Shea's original bid. In this document, Christensen wrote that Briggs's work was of low quality and that Briggs's job "was purposely [underbid] in order to obtain it, with the intention of going for more money [halfway] through the project." Christensen maintains that such statements are not defamatory or, in the alternative, that they are protected by the "business interest" privilege. To prove that a statement is defamatory, a plaintiff must show: (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the existence of either "per se" actionability or special harm.[ ] "A communication is defamatory if it tends to harm the reputation of another so as to lower him [or her] in the estimation of the commu nity or to deter third persons from associating or dealing with him [or her]." Drawing all reasonable factual inferences in favor of Shea, we agree with the superior court's conclusion that Christensen's comments about Briggs and Shea's work performance could be considered defamatory. But we also agree with the superior court that, even if Christensen's comments were defamatory, Shea cannot maintain a defamation claim because the statements were privileged. "One who publishes defamatory matter concerning another is not liable for the publication if: (a) the matter is published upon an occasion that makes it conditionally privileged and (b) the privilege is not abused." We have acknowledged two types of conditional privileges: when the media prints items of public interest and when a person "having a common interest in a particular subject matter believes that there is information that another sharing the common interest is entitled to know." Specifically, we have recognized a conditional privilege based on either a joint business interest or an employee/employer relationship when a statement is made "for the protection of a lawful business, professional, property or other pecuniary interest." The defendant has the burden of asserting the privilege. Here, Christensen met that burden. As he explained in his motion for summary judgment, Christensen's statements were part of a document Christensen created to explain to Hess the scope and cost of finishing the job Briggs and Shea began. Christensen's speculations as to why Briggs's bid was so low could reasonably be construed as a means of justifying the relatively high costs of finishing the project, thereby protecting Christensen's business interest in the project. The business privilege is clearest "when a legal relationship exists between the defendant and the person on whose behalf he intervenes." Here, Christensen and Hess had a contractual relationship and had been doing business together for years. Thus, Christensen "could reasonably have thought [Hess] should be informed of [Christensen's] dissatisfaction with [Briggs and Shea's] performance." The question thus becomes whether Christensen abused the business privilege. A conditional privilege may -be abused if the defendant acted with malice — if he had "knowledge or reckless disregard as to the falsity of the defamatory matter" or if the matter is "not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged." In making this determination, we look to whether the speaker had a reasonable belief in the truth of the statement. "Ordinarily, once a defendant establishes the existence of a privilege the plaintiff has the burden of showing that it has been abused." Christensen argued in his motion for summary judgment that no evidence was produced to demonstrate any malice on his part. We agree. An examination of the allegedly defamatory document reveals that Christensen tempered his comments with the admission that he was not present for the original bid and that his comments merely reflected his personal opinion. Shea has pointed to no evidence, other than the document itself, to establish that Christensen knew his statements were false or that he acted recklessly with respect to their falsity. In Lull v. Wick Construction Co., we found a lack of malice as a matter of law under very similar facts. In Lull, a subcontractor, The Crowning Touch, brought a defamation suit against its general contractor, Wick Construction, because Wick communicated to The Crowning Touch's bank and bonding company about Wick's dissatisfaction with The Crowning Touch's performance on a particular project. We held that Wick had not abused the business privilege .and was entitled to judgment as a matter of law on the defamation claim: [T]he evidence . reveals no indication that the communications from Wick to the bank and bonding company were made with malice.... The letter, copies of which Wick sent to the bank and bonding company, did not go beyond stating that Wick was taking over the contract because of nonperformance by The Crowning Touch, and listing the particular instances of nonperformance of which Wick accused The Crowning TouchJ[ ] Just as The Crowning Touch presented no evidence that Wick's accusations were malicious, Shea has provided no indication that Christensen's comments were made with malice. Under these circumstances, the superior court did not err in its grant of summary judgment to Christensen on the defamation claim. V. CONCLUSION Because the trustee for Briggs's bankruptcy estate is the only proper plaintiff to bring Briggs's substantive claims, we AFFIRM the superior court's dismissal of Briggs's claims without prejudice on standing grounds. Because Shea failed to raise a genuine issue of material fact as to whether Christensen intentionally interfered with Briggs and Shea's contract or whether Christensen's allegedly defamatory comments were protected by the business privilege, we also AFFIRM the su-penor court s grant of summary judgment to Christensen on those claims. . In January 1992 Christensen was charged with three counts of submitting bids and working as a contractor and plumber without a license from 1990 to 1992. . See Briggs v. Hess, Nos. 3AN-92-2155/2156 Cl (Consolidated) (Alaska Dist.Ct., November 17, 1993). . See 11 U.S.C. § 701-766. . Newton had previously owned R & R under the name R & R Plumbing and had entered into an agreement to sell the business to Christensen in August 1988. According to Newton, Christensen never completed payments on the sale. Newton testified in Briggs v. Hess that he and Christensen were in a type of 'partnership." The exact nature of their business relationship remains a disputed issue that the superior court chose not to resolve. . See Bishop v. Municipality of Anchorage, 899 P.2d 149, 153 (Alaska 1995) (citation omitted). . See Bohna, 828 P.2d at 754 (citing Hanover Ins. Co. v. Tyco Indus. Inc., 500 F.2d 654, 657 (3d Cir.1974)); see also Price v. Gaslowitz (In re Price), 173 B.R. 434, 440 (Bankr.N.D.Ga.1994) ("[A] debtor may not unilaterally prosecute a claim that belongs to the estate."); Dorr, Keller, Bentley & Pecha v. Dorr, Bentley & Pecha, 841 P.2d 811, 816 (Wyo.1992) ("All causes of action . may only be brought by the trustee after the petition in bankruptcy is filed."). . 28U.S.C. § 1334(a). . 28U.S.C. § 1334(b). . See, e.g., AMW Cable Co., Inc. v. McCray, 209 B.R. 410, 413-14 (Bankr.N.D.Miss.1997); Boyajian v. DeLuca, 180 B.R. 365, 368 (Bankr.D.R.I.1995). See generally 28 U.S.C.A. § 1334(b) annots. 47, 48 (1993 & West Supp.1998). . The superior court's statement that Alaska courts have jurisdiction over Briggs's case because it "certainly is related to the bankruptcy proceeding" is thus inaccurate. Even if the "related to" test applied here, most courts have found that a debtor's breach-of-contract and tortious interference cases are .sufficiently "related to" bankruptcy proceedings as to be within the scope of the district court's original jurisdiction. See, e.g., Hughes-Bechtol, Inc. v. Construction Management, Inc., 132 B.R. 339, 343 (Bankr.S.D.Ohio 1991) (holding that debtor's breach-of-contract suit was "related to" bankruptcy case because potential recovery could alter debtor's rights or liabilities). And at least one court has held that a debtor could not enjoin a state breach-of-contract suit when the federal court merely had concurrent, not exclusive, jurisdiction over the case. See Florida Precast Concrete, Inc. v. City of Orlando, 139 B.R. 37, 38-39 (Bankr.M.D.Fla.1992). . In re Perkins, 902 F.2d 1254, 1258 (7th Cir.1990); see also Pierson & Gaylen v. Creel & Atwood (In re Consolidated Bancshares, Inc.), 785 F.2d 1249, 1253-54 (5th Cir.1986); Mitchell Excavators, Inc. v. Mitchell, 734 F.2d 129, 131-32 (2d Cir.1984). . See, e.g., Cottrell v. Schilling (In re Cottrell), 876 F.2d 540, 543 (6th Cir.1989) (granting a motion to substitute trustee's counsel in the suit rather than dismissing the case); Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir.1988) (holding that because debtor lacked standing, court properly substituted trustee as plaintiff). . See id. . See State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 950 (Alaska 1995). . State, Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997). . 11 U.S.C. § 541(a)(1) provides that the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." See also Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 754 (Alaska 1992). .The Restatement (Second) of Torts defines "intentional interference with another's performance of his own contract" as follows: One who intentionally and improperly interferes with the performance of a contract . between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him. Restatement (Second) of Torts § 766A (1979). See also Plattner v. State Farm Mut. Automobile Ins. Co., 168 Ariz. 311, 812 P.2d 1129, 1133-34 (App.1991) (allowing attorney to bring an interference claim against a third party for forcing him to breach his contract with his client). . We may affirm a superior court's grant of summary judgment on any grounds. See Ward v. Lutheran Hosp. & Homes Soc'y of Am., Inc., 963 P.2d 1031, 1034 (Alaska 1998). . RAN Corp. v. Hudesman, 823 P.2d 646, 648 (Alaska 1991) (citation omitted). . Shea does not dispute this finding. Indeed, he used it to argue in the opposition to Christensen's motion for summary judgment that Christensen knew about the contract. . See Rooney v. Rooney, 914 P.2d 212, 215-16 (Alaska 1996). . French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996). . Id. (alterations in original) (citation omitted). . Schneider v. Pay'N Save Corp., 723 P.2d 619, 623 (Alaska 1986) (quoting Restatement (Second) of Torts § 593 (1977)). . Id. at 623-24 (citing Lull v. Wick Constr. Co., 614 P.2d 321 (Alaska 1980)) (internal quotation marks omitted). . See Lull, 614 P.2d at 324. . See Schneider, 723 P.2d at 624. . Id. (discussing and adopting comments to Restatement (Second) of Torts § 595). . Id. . Schneider, 723 P.2d at 624. . Lull, 614 P.2d at 324. . Id. at 624-25 (quoting Restatement (Second) of Torts § 599 cmt. a (1977)). . See id. at 625. . Id. at 624. . 614 P.2d 321 (Alaska 1980). . See id. at 322-23. . Id. at 324-25 (footnote omitted).

11583201

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant and Cross-Appellee, v. Dusan D. KOVAC, Appellee and Cross-Appellant

State, Department of Revenue, Child Support Enforcement v. Kovac

1999-08-06

Nos. S-8423, S-8424

1109

1113

984 P.2d 1109

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant and Cross-Appellee, v. Dusan D. KOVAC, Appellee and Cross-Appellant.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant and Cross-Appellee, v. Dusan D. KOVAC, Appellee and Cross-Appellant. Nos. S-8423, S-8424. Supreme Court of Alaska. Aug. 6, 1999. Scott Davis, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for AppellanVCross-Appel-lee. Rita T. Alee, Fairbanks, for Appel-lee/Cross-Appellant. Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

2521

15711

OPINION BRYNER, Justice. I. INTRODUCTION R.M. was born to the marriage of Richard Romer and Darlene Wright; Romer was thus presumed to be R.M.'s father. Romer and Wright later separated and divorced. Several years afterward, the superior court ruled that Romer was not R.M.'s father and owed him no duty of support. Wright subsequently identified Dusan Kovac as R.M.'s father. Ater genetic testing confirmed the identification, the court entered summary judgment (1) rejecting Kovac's claim that Romer is R.M.'s father by estoppel, (2) establishing Kovac as the father, and (3) ordering him to pay R.M.'s support from May 1996, when the court had declared that Romer was not R.M.'s father. We affirm in part and reverse in part. Because Kovac failed to join Romer as a party to this action and offered no evidence of estoppel, we hold that the court properly established Kovac's paternity. But because a father's duty of support arises upon the birth of his child, we hold that Kovac owes R.M. support from birth. II. FACTS AND PROCEEDINGS In 1988, after sixteen years of marriage, Darlene Wright filed for divorce from Richard H. Romer. Wright's complaint listed four children born of the marriage, the youngest being three-year-old R.M. Romer answered the complaint, acknowledging that all four of Wright's children were born of the marriage. The following year Wright amended her complaint to assert that R.M. was not born of the marriage. R.M. was never mentioned again in the divorce proceedings. Wright and Romer eventually settled all issues of support, custody, visitation, and property/debt division. Their settlement agreement, incorporated in a divorce decree issued in Anchorage on February 22, 1991, made no provision for R.M.'s custody or support. In 1992 the case was transferred from Anchorage to Bethel — where Wright lived— for consideration of various child support issues. Superior Court Judge Dale O. Curda in July 1993 ordered Romer to pay arrearag-es and increased his child support obligation to reflect his increased income. There is no indication that anyone mentioned R.M. during these proceedings. After Judge Curda issued the July 1993 order, Wright applied to the Child Support Enforcement Division (CSED) for assistance in collecting support from Romer. In her application she listed her three oldest children but did not refer to R.M. In 1996, with CSED's assistance, Wright moved to modify the child support order. Romer opposed Wright's motion. Evidently believing that the motion sought an order requiring him to pay support for R.M., Rom-er filed an affidavit declaring that he was not R.M.'s biological father, that Wright had told him R.M. was not his son when they separated in 1988, and that he no longer maintained any relationship with R.M. Romer offered to submit to a blood test to establish that he was not the boy's father. Claiming that he had second-hand knowledge of the father's identity, Romer also suggested that the putative father "could be available for paternity testing." In addition to filing this affidavit, Romer served Wright with a request for admission, asking her to acknowledge that Romer is not R.M.'s biological father. Wright did not reply to Romer's affidavit or answer his request for admission. In May 1996, based on Romer's affidavit and Wright's failure to respond, Judge Curda entered an order declaring that Romer was not R.M.'s biological father and owed him no duty of support: Plaintiffs minor child, [R.M.], born April 4, [1985,] is not a child of the marriage and Defendant, RICHARD H. ROMER owes no child support and has no child support obligation for this child. Five months later, Wright signed an affidavit naming Dusan D. Kovac as R.M.'s biological father. CSED filed a complaint against Kovac in Fairbanks (where he resided) seeking to establish that he was R.M.'s biological father. Genetic testing later established a 99.85% probability of Kovac's paternity. After receiving this test result, both parties moved for summary judgment in the paternity action. CSED, arguing that the test proved that Kovac was R.M.'s biological father, requested an order establishing his paternity and his duty to support R.M. from the date of the child's birth. Kovac, pointing out that Romer was presumed to be R.M.'s legal father because R.M. was born during the Romers' marriage, maintained that since Romer's paternity had never been formally disestablished, Romer was liable for R.M.'s support. Kovac further maintained that Romer was equitably estopped from denying paternity and should therefore remain liable for support. The paternity action was assigned to Superior Court Judge Ralph R. Beistline in Fairbanks. The judge granted partial summary judgment in CSED's favor and denied summary judgment to Kovac. Judge Beistline found that the superior court in Bethel had effectively disestablished Romer's paternity in May 1996 when it declared that R.M. was not a child of the Romers' marriage. Judge Beistline further found that the recent blood test clearly and convincingly established Ko-vac's biological paternity and that Kovac had failed to present sufficient evidence to justify a trial on his claim that Romer should be estopped from denying paternity. Accordingly, the judge declared Kovac to be R.M.'s father and directed him to pay R.M.'s support from the date of the Bethel order forward. CSED appeals; Kovac cross-appeals. III. DISCUSSION A. Standard of Review CSED challenges the superior court's refusal to hold Kovac liable for R.M.'s support from the date of his birth. Kovac claims that his own paternity cannot properly be established because Romer's paternity has never been validly disestablished; he further maintains that the court erred in summarily rejecting his estoppel claim. These arguments present issues of law arising on settled facts. We review legal questions de novo, adopting the rule of law most persuasive in light of precedent, reason, and policy. B. The Superior Court Erred in Deciding that Kovac's Duty to Pay Suppoit Began When Judge Curda Disestablished Romer's Paternity Instead of When R.M. Was Bom. CSED argues that the superior court erred in ruling that Kovac's duty to support R.M. attached as of May 22, 1996, the date that Judge Curda effectively disestablished Romer's paternity. CSED insists that Ko-vac's child support duty arose upon R.M.'s birth, persuasively arguing that State, CSED v. Rios controls the issue. In Rios, relying upon statutory and common law, we held that "a biological parent's duty of support commences at the date of the birth of the child." In declining to follow Rios, Judge Beistline distinguished that case, which dealt with a child whose father had not been identified before the court established his paternity. He contrasted the facts in Rios from the present case, in which "[R.M.] was born to a marriage and thus the presumption at birth was that [Romer] was the father." In drawing this distinction, the judge focused on a passage from Rios that states: "[Although an adjudication of paternity may be a prerequisite to enforcement of a duty of support, it does not create the duty of support." Judge Beistline evidently took this passage to mean that a child's newly-established biological father can owe no duty of support until the existing legal father's paternity is disestablished. But this reading of Rios is mistaken. The quoted passage from Rios simply emphasizes that, even though the biological father's support duty cannot be enforced until his paternity is formally established, the duty itself arises upon the birth of his child. Rios makes this point clear by quoting the following language from Weaver v. Chester: "[I]t is not the father's obligation to support the child which is made contingent upon an adjudication of paternity but simply the right to enforce that legal obligation through legal process." Rios thus squarely stands for the proposition that Kovac's duty to support R.M. arose upon R.M.'s birth. As we pointed out in Rios, this proposition reflects sound policy; [Precluding [an award from the date of the child's birth] would create an incentive for men to avoid their child support obligations for some period of time by delaying the process of adjudicating paternity. The creation of such an incentive would, of course, run counter to the statutory pur pose of providing for the needs of children without regard to circumstances of birth.[ ] More recently, in Rubright v. Arnold, we affirmed an order establishing the paternity of a biological father, Rubright. The order held Rubright responsible for child support accruing from the day that his son, C.A., was born. C.A. was born while his mother was married to another man, Arnold, and C.A.'s birth certificate listed Arnold as the father. Accordingly, Arnold was presumed to be C.A.'s parent, and his legal paternity had never been disestablished. By recognizing Rubright's duty to pay support from the date of C.A.'s birth, we effectively held that a presumptive father's paternity need not be disestablished before a newly-established biological father's duty to pay support arises. Together, Rios and Rubright dictate the conclusion that Kovac's child support duty arose upon R.M.'s birth. Accordingly, we hold that the superior court erred in ruling that the duty began only when Judge Curda disestablished Romer's paternity. Kovac nevertheless argues in his cross-appeal that the superior court erred by summarily rejecting his claim that Romer should be estopped from denying paternity. He asserts that "[w]hile blood testing is a useful tool, the superior court erred by relying solely on the blood test results as dis-positive, denying [Kovac] the opportunity to develop the factual basis for an estoppel defense." Although Kovac acknowledges the court's ruling that he had presented insufficient evidence to support this defense, he insists, that "there is enough in the record to preclude denying [his] defense as a matter of law without any effort to hear and consider evidence." But as CSED points out in response to this argument, Kovac could not properly establish his claim of estoppel against Romer without joining him as a party to the establishment action. Kovac failed to do so. Moreover, Kovac bases his argument on an unduly broad theory of paternity by estoppel. He suggests that the record supports a conclusion that R.M. and Romer have a close relationship and that R.M. has come to accept Romer as his father. Relying on three eases in which we have previously discussed the doctrine of paternity by estoppel—K.E. v. J.W., Wright v. Black, and H.P.A. v. S.C.A., —Kovac appears to assume that Romer would be barred from denying paternity if his denial would cause R.M. emotional harm by violating his reasonable expectation of continuing this relationship. But we have recently narrowed the scope of this equitable defense, holding that paternity by estoppel applies only upon proof of economic reliance and that "the risk of emotional harm inherent in severing a child's relationship with a psychological parent cannot itself suffice as a basis for invoking the doctrine of paternity by estoppel ." Kovac has failed to allege or produce admissible evidence of any potential economic detriment to R.M. or his mother that might bar Romer from denying paternity. Thus, even assuming that the superior court had authority to decide Kovac's estoppel claim in Romer's absence, its decision rejecting the claim and denying Kovac's motion for summary judgment was proper. IV. CONCLUSION We therefore REVERSE the superior court's partial denial of CSED's motion fox-summary judgment, AFFIRM its order denying Kovac's motion for summary judgment, and REMAND for entry of a modified judgment directing that Kovac's duty of support be recalculated as having commenced upon R.M.'s birth. . See State, CSED v. Gerke, 942 P.2d 423, 425 (Alaska 1997) (quoting Guin v. Ha, 591 P.2d 1281, 1284 (Alaska 1979)). . 938 P.2d 1013 (Alaska 1997). . Id. at 1015 (citing AS 25.20.030; Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987) (superceded by rule in other respects)). .See id. at 1014. . Id. at 1015 (quoting Cyrus v. Mondesir, 515 A.2d 736 (D.C.1986) (first alteration in original)). . 973 P.2d 580 (Alaska 1999). . See id. at 581, 586. . See id. at 582. . See id. at 581-83. . See id. at 584-85 (expressly stating that Ru-bright could be liable for C.A.'s support even if Arnold had not been a party to the paternity action). This aspect of Rubright may seem to be in tension with several cases holding that legal fathers whose biological paternity is disestablished should normally be granted only prospective relief from their child support obligations. See, e.g., State, CSED v. Wetherelt, 931 P.2d 383, 387-88 (Alaska 1997). But the tension is more apparent than real: Any potential overlap in child support obligations between a newly-established biological father and a former legal father may be remedied through reimbursement. See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987) ("A parent's duty of support encompasses a duty to reimburse other persons who provide the support the parent owes.") (superceded by rule in other respects). Cf. Smith v. Cole, 553 So.2d 847, 854-55 (La.1989) (recognizing the concept of "dual paternity" in which a child born into a marriage with a non-biological father retains a legal parent/child relationship based on presumptive fatherhood for purposes of legitimacy and inheritance, while becoming the child of a newly-established biological father for purposes of child support). See also Flanigin v. State, CSED, 946 P.2d 446, 450 (Alaska 1997) (recognizing that "child support arrearages are imposable by law from the date of a child's birth"). . CSED alternatively argues that Judge Curda's order did not disestablish Romer's paternity but instead essentially determined that he had never been R.M.'s legal parent and accordingly never owed him a duty of support. Kovac disputes this characterization of Judge Curda's order and insists that, however construed, the order is invalid. Given our conclusion that as R.M.'s biological father Kovac is responsible for his support from the date of R.M.'s birth regardless of Rom-er's status as a legal parent, we need not address these arguments. . See State ex rel. Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425, 432 (1998) ("[The biological father] asserts that the conduct of [the presumed father and mother] should preclude them from denying [the presumed father's] paternity. However, [the presumed father] is not a party to this action and therefore cannot be estopped."); see also State ex rel. J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165, 175 (1992) ("[T]he obvious weakness in [the biological father's] theory is that the person he alleges engaged in misrepresentations, [the presumed father], is not a party to this suit."). . Id. at 1015. . 195 Ga.App. 471, 393 S.E.2d 715 (1990) (superceded by statute in other respects). . Id. at 717, quoted in Rios, 938 P.2d at 1015 n. 5 (alteration in original). . 899 P.2d 133 (Alaska 1995). . 856 P.2d 477 (Alaska 1993). . 704 P.2d 205 (Alaska 1985). .B.E.B. v. R.L.B., 979 P.2d 514, 520 (Alaska 1999).

11579336

Samuel F. FEJES, Jr., Appellant, v. ALASKA INSURANCE COMPANY, INC., American International Surplus Insurance Lines, Inc., American International Speciality Lines, Inc., American International Group, Inc., and John Does I through V, et al., Appellees

Fejes v. Alaska Insurance Co.

1999-08-20

No. S-8372

519

527

984 P.2d 519

984

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Samuel F. FEJES, Jr., Appellant, v. ALASKA INSURANCE COMPANY, INC., American International Surplus Insurance Lines, Inc., American International Speciality Lines, Inc., American International Group, Inc., and John Does I through V, et al., Appellees.

Samuel F. FEJES, Jr., Appellant, v. ALASKA INSURANCE COMPANY, INC., American International Surplus Insurance Lines, Inc., American International Speciality Lines, Inc., American International Group, Inc., and John Does I through V, et al., Appellees. No. S-8372. Supreme Court of Alaska. Aug. 20, 1999. Rehearing Denied Sept. 29, 1999. Peter J. Maassen, Ingaldson Maassen, P.C., Anchorage, for Appellant. Charles M. Merriner, Pletcher, Weinig & Merriner, Anchorage, for Appellees. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and BRYNER, Justices.

4245

26844

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION A contractor was sued by a homeowner when an improperly constructed curtain drain failed and caused a septic system to stop functioning. The system and the drain were constructed by a subcontractor. The question presented is whether the contractor's comprehensive general liability policy covered the suit. The superior court concluded that there was no coverage and granted summary judgment to the insurer. Viewing the facts in the light most favorable to the contractor we conclude that the facts giving rise to the suit are within the coverage of the policy. We therefore reverse. II. FACTS AND PROCEEDINGS In reviewing a grant of summary judgment we "must view the facts in the light most favorable to the non-moving party." The following facts are stated from that perspective. Samuel Fejes was the sole shareholder and chief executive officer of Becharof Corporation. Alaska Insurance Company, Inc., (AIC) insured Becharof under a comprehensive general liability policy with a broad form property damage liability endorsement. The policy covered Fejes as an additional insured. In 1985 and 1986 Becharof constructed a house on a lot owned by Fejes and his business partner. Becharof subcontracted the installation of the on-site septic system for the house, including a "curtain drain," to Fejes Development, a company owned by Fejes's brother, Chris, in which Fejes had no interest. The curtain drain was needed to prevent groundwater from invading the septic system's leach field. In 1986 Becharof sold the house to Kathleen Reeves. At the time of the sale Becha-rof assured Reeves of the septic system's fitness, and that it had been inspected and approved. But the curtain drain was improperly constructed; it became clogged with silt and failed soon after the sale, destroying the septic system's functionality. The problems resulting from the failure went unnoticed until Reeves attempted to sell her lot in 1993. At that point she was forced to replace the system with a large holding tank. Reeves sued Fejes in May of 1993 for damages arising from the failed septic system, asserting fraud and misrepresentation. In February 1995 Fejes tendered his defense to AIC. AIC rejected the tender and denied that it had a duty to defend Fejes, contending that there was no coverage. Fejes responded by reminding AIC of its obligation to defend even if the face of the complaint did not allege facts within policy coverage, so long as AIC knew, or a reasonable invéstigation would uncover, underlying facts which would bring the case within policy coverage. Fejes theorized that the curtain drain had failed, damaging the septic system. He claimed that this sequence of events was within the policy's coverage. AIC refused to defend. Fejes and Reeves then agreed to an abbreviated bench trial. The superior court found that the curtain drain had failed due to a defect in the subcontractor's workmanship and had damaged the septic system. Although Fejes was not aware of this defect, he was found liable for breach of warranty. The court entered judgment against Fejes for $104,148.23. He incurred legal fees and costs of $35,689.68 in defending the suit. Fejes then commenced the present action against AIC, seeking indemnity for the judgment and payment of his legal expenses. The superior court granted AIC's cross-motion for summary judgment, ruling that the policy did not cover the allegations in Reeves's suit or the underlying facts known or reasonably ascertainable by AIC. Fejes appeals. III. STANDARD OF REVIEW "We review a grant of summary judgment de novo, applying our independent judgment." We will uphold summary judgment "if no issues of material fact are in dispute and the moving party is entitled to judgment as a matter of law." All reasonable inferences of fact are drawn in favor of the non-moving party. The moving party bears the "initial burden of proving, through admissible evidence, the absence of genuine factual disputes and its entitlement to judgment." If the moving party presents a prima facie showing that it is entitled to judgment, the burden shifts to the nonmoving party to show a "genuine issue for trial." IV. DISCUSSION A.Interpretation of Insurance Policies We interpret insurance policies in accordance with the following precepts. "[T]o the extent that there are no relevant unresolved or controversial facts, '[t]he construction of an insurance contract is a matter for the court.' " A policy's meaning is determined by examining "the language of the disputed policy provisions, the language of other provisions in the policy, . relevant extrinsic evidence, . [and] case law interpreting similar provisions." "[A]n insurance policy may be considered a contract of adhesion and as such should be construed so as to provide the coverage which a layman would reasonably have expected, given his lay interpretation of the policy language." We therefore resolve ambiguities in the meaning of insurance contracts against the insurer. B. Duty to Defend "An insurer's duty to defend and its obligation to indemnify are separate and distinct contractual elements." The insurer's duty to defend is broader than its duty to provide coverage. The insurer may therefore be obligated to defend even where it has no ultimate liability under the policy. "The duty to defend arises 'if the complaint on its face alleges facts which, standing alone, give rise to a possible finding of liability covered by the policy.'" Even if the complaint does not contain such allegations, the insurer has a duty to defend if facts underlying the complaint are within, or potentially within, the policy coverage and are known or reasonably ascertainable by the insurer. C. Was There an "Occurrence"? The comprehensive general liability policy provides insurance against claims for property damage caused by an "occurrence." An "occurrence" is an accident which results in property damage. The policy explains that an accident can include "repeated and continuous exposure to conditions" which results in property damage that is "neither expected or intended from the standpoint of the insured." Finally, property damage entails physical injury to or destruction of tangible property and may include loss of use of tangible property which has not been physically injured or destroyed. The trial court concluded that there was no occurrence. The court focused first on the complaint, finding that claims of fraud and misrepresentation "are not claims for property damage" and thus cannot fall within the meaning of the term "occurrence." The trial court also found that the judgment against Fejes for breach of warranty was not a claim for property damage. The court then focused on whether there were underlying facts within or potentially within policy coverage. It concluded there were not because there was not an accident: Plaintiff Fejes'[s] previous litigation did not involve an "occurrence" causing property damage as defined in the policy. "Occurrence" requires an "accident" that results in "property damage." There was no "occurrence" on the property purchased by Ms. Reeves. The curtain drain failed, causing the destruction of the septic system within one year after purchase. The septic system wasn't subject to an accident or repeated exposure to conditions other than the normal, expected, and intended use. The failure of the subcontractor . to properly install an on site septic system can hardly be called an occurrence or an accident. Fejes takes issue with this rationale. Referring to the policy definition of "occurrence," he contends that the failure of the curtain drain, "allowing ground water to percolate through and destroy the septic system downslope, fits squarely within this policy definition," and that "[ejven the flooding of the septic system was a continuous or repeated exposure to conditions that meets the definition." Fejes contends that the normal meaning of the term "accident" focuses not on the negligence of the actor but on the result. He argues: In the trial court's view, it may be no "accident" that a mechanic fails to tighten the nuts on a wheel; but that cannot 'mean there is no "accident" for purposes of coverage when the wheel comes off on the highway. It may be no "accident" that a landlord fails to fix a broken step; but that cannot mean there is no "accident" for purposes of coverage when a tenant falls down the stairs. It may be no "accident" that [the subcontractor] failed to properly install the curtain drain; but that cannot mean that the drain's subsequent collapse and the destruction of the septic system did not constitute an "accident." AIC responds that claims for misrepresentation or deceit do not arise out of "an accident." Fejes has the better of this argument. The mere fact that a complaint against a contractor is based on a theory of misrepresentation or deceit does not mean that the facts underlying the claim did not arise from an accident. We have defined the term "accident" as "anything that begins to be, that happens, or that is a result which is not anticipated and is unforeseen and unexpected." From Fejes's standpoint, the failure of the curtain drain was neither expected nor intended. And the fact that the drain failed by becoming infused with silt caused by "repeated and continuous exposure to conditions" does not take the failure out of the definition of "accident" under the policy. The trial court also concluded that Reeves's claims "are not claims for property damage." Fejes disagrees, noting that the trial court accepted that the failure of the curtain drain caused "the destruction of the septic system" and that the destruction of the septic system easily falls within one of the policy definitions of property damage, "destruction of tangible property." AIC counters that Reeves's claims are for "loss-of-bargain damages" rather than for "destruction of tangible property." AIC also contends that the general coverage of comprehensive general liability policies is liability protection for damage to others, not for damage to the product or work of the insured. AIC argues that "[t]he coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained." On this point too we think Fejes is more persuasive. The flooding of the septic system fairly falls within the meaning of the term "destruction of tangible property." AIC's contention that Reeves's claims were for loss-of-bargain damages does not mean that those claims were not "because of' or resulting from property damage, which is what the policy requires. For reasons explained later in this opinion, the argument that comprehensive general liability policies do not cover damage to the work of the insured is not wholly accurate with respect to policies containing a broad form property damage liability coverage endorsement. In any case, such an argument could not overcome actual policy language. We conclude therefore that the court erred in ruling that the facts underlying Reeves's complaint, construed favorably to Fejes, did not involve an occurrence within the meaning of the policy. D. Is Coverage Excluded? The policy also contains numerous exclusions that remove from coverage liability resulting under specified circumstances. Viewing the facts in the light most favorable to Fejes, we conclude that none of the exclusions precludes coverage in the present case. 1. Exclusion (m) The trial court found that coverage was excluded under Exclusion (m). The court quoted this exclusion as eliminating from coverage "the failure of the named insured's products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured." We disagree. The full text of Exclusion (m) limits its applicability "to loss of use of tangible property which has not been physically injured or destroyed.... " Since the septic system was physically injured or destroyed and Reeves's claims were not limited to loss of use, Exclusion (m) does not preclude AIC's duty to defend. 2. The broad form property damage liability exclusions Exclusion (o) excludes coverage for "property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts, or equipment furnished in connection therewith." But AIC's policy also contains a broad form property damage liability coverage endorsement, which replaces Exclusion (o) with Exclusions (A)(1) through (A)(3). The endorsement expands the insured's liability coverage for property damage. a. Exclusion (A)(2)(d)(ii)-(iii) Exclusion (A) (2) (d) (ii)-(iii) eliminates coverage for "that particular part of any property, not on premises owned by or rented to the insured, . (ii) out of which any property damage arises, or (iii) the restoration, repair or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured." Fejes argues that "that particular part of any property . out of which property damage arises" refers to the curtain drain, since it was the failure of the curtain drain from which subsequent damage arose. Fejes claims that since Reeves did not seek compensation for damage to the curtain drain, nor was it restored, repaired or replaced, Exclusion (A)(2)(d)(ii)-(iii) does not apply. AIC counters that the holding tank system Reeves installed instead of restoring the septic system and curtain drain is effectively a repair of the defective system. We reject AIC's argument as an overly broad interpretation of the exclusion. Fejes's interpretation is reasonable: the exclusion would exclude claims for the cost of repairing or replacing the curtain drain, but not the cost of alternative waste disposal systems made necessary by the failure of the curtain drain. b. Exclusion (A)(3) Exclusion (A)(3) excludes "with respect to the completed operations hazard . [coverage for] property damage to work performed by the named insured arising out of such work or any portion thereof, or out of such materials, parts or equipment furnished in connection therewith." Exclusion (A)(3) essentially parallels Exclusion (o), but with an important difference: it deletes (o)'s exclusion of work performed "on behalf of a named insured." The effect of this deletion is to provide coverage as'to work performed for the named insured by subcontractors. We so concluded in Alaska Pacific Assurance Co. v. Collins. Exclusion (A)(3) removes coverage as to property damage or work performed by the named insured, but not by someone on behalf of the named insured. Since the property damage in this case arose from the subcontractor's work, the exclusion does not apply. Insurance industry publications and case law support our conclusion. In Fireguard Sprinkler Systems, Inc. v. Scottsdale Insurance Co., the Ninth Circuit concluded that the broad form property damage endorsement, identical to that in the present case, is "intended to cover losses caused by the work of subcontractors." The court supported its conclusion by quoting from insurance industry publications. It quoted a circular prepared by the Insurance Services Office which promulgated the form provisions at issue. The circular notes that the broad form exclusions are intended to "exclud[e] only damages caused by the named insured to his own work. Thus, . [t]he insured would have coverage for damage to his work arising out of a subcontractor's work [and][t]he insured would have coverage for damage to a subcontractor's work arising out of the subcontractor's work." The Ninth Circuit also quoted a National Underwriters Association bulletin used by insurance agents and brokers to interpret standard insurance policy provisions. With respect to the broad form endorsement, the excerpt stated: [T]he exclusion eliminates coverage for property damage to work performed by the named insured if the property damage arises out of the named insured's work or any portion of it. Thus, an insured has coverage for his completed work when the damage arises out of work performed by someone other than the named insured, such as a subcon-tractor_ The usual Completed Operations coverage (no Broad Form Property Damage endorsement attached) flatly excludes property damage to work performed by or on behalf of the named insured arising out of the work. Under the usual coverage, then, the insured has no insurance whatsoever for damage to a subcontractor's work or for damage to his own work resulting from a subcontractor's work. Therein he the advantages of Broad Form Property Damage coverage including Completed Operations. Consequently, if an insured does not anticipate using subcontractors, the value of purchasing Broad Form Property Damage coverage with Completed Operations is questionable, in view of the additional premium required for it.[ ] Other cases interpreting the broad form endorsement to provide coverage for losses caused by the contractor's subcontractors include Maryland Casualty Co. v. Reeder; McKellar Development of Nevada, Inc. v. Northern Insurance Co.; and Prudential-LMI Commercial Insurance Co. v. Reliance Insurance Co. 3. Exclusion (n)—Named Insured's Products Exclusion (n) eliminates coverage for "property damage to the named insured's products arising out of such products." The "named insured's products" are "goods or products manufactured, sold, handled or distributed by the named insured." Fejes argues that a completed building is not a product, while AIC argues that it is. Other courts are divided on this issue. We are of the view that a "product" under the policy does not include a completed building. Interpreting the term to include a completed building would negate the intended coverage of the broad form endorsement, which is meant to provide protection to completed work when damage arises from the work of a subcontractor. The National Underwriters Association bulletin mentioned above in Fireguard Sprinkler Systems v. Scottsdale Insurance Co. indicates that our reading of the product's exclusion is correct. As quoted in Maryland Casualty Co. v. Reeder the bulletin states: The editors have heard of instances in which insurers have denied coverage . on the ground that the policy exclusion of injury to the named insured's products (which is not amended by the Broad Form endorsement) eliminates coverage for any damage to the completed building, the completed building being a "product" of the named insured. In the opinion of the editors, that reasoning ignores the distinction between the "completed operations hazard" and "named insured's products" in the policy definitions. Moreover, that reasoning precludes any possibility of recovery under the Completed Operations feature of the Broad Form Endorsement, a feature for which the insured has presumably paid an additional premium.[ ] 4. Exclusion (l)—Alienated Premises Exclusion (l), the "alienated premises" exclusion, removes from policy coverage liability for "property damage to premises alienated by the named insured arising out of such premises or any part thereof." Fejes argues that the named insured, Be-charof, never owned the premises and therefore never alienated them. He argues therefore that this exclusion does not apply. He also contends that the alienated premises exclusion is limited to cases where premises were first occupied, rented or held for rental by the insured and was not intended to apply to the completed' operations of a contractor like Becharof. In response AIC contends that Fejes owned and sold the land on Becharof s behalf and thus, presumably, Becharof alienated the premises because Fejes did so on its behalf. AIC also argues that in contrast to the cases relied on by Fejes, a number of cases apply the alienated premises exclusion to situations where a contractor buys land and builds on it for purposes of sale without occupying the premises for its own purposes. We believe that the alienated premises exclusion should be narrowly construed. Otherwise, it would negate the coverage for completed work provided by the broad form endorsement. In this respect we agree with the position taken by the Supreme Court of Nevada in McKellar Development v. Northern Insurance Co. Quoting an industry publication, the Nevada court stated: This exclusion could severely limit coverage granted under the [broad form] endorsement. Consider the contractor who constructs property such as office buildings, houses, etc., retains title, and later sells that property. This is often the case with real estate developers. Once the sale has taken place, the contractor or developer would have no property damage coverage for damage to the alienated premises even though he has purchased . the proper [broad form] endorsement. This interpretation is outside the scope of intent of the policy, but it has been taken on occasion by insurers.[ ] California courts have made similar observations. In Prudential-LMI, the court noted: Although "it was never intended to apply to the completed operations of a contractor" where units were "constructed] for the purpose of resale," "it has been used in conjunction with other 1973 CGL policy provisions to preclude coverage for construction-related property damage claims that probably should have fallen within the coverage intent of the policy."[ ] V. CONCLUSION We conclude that the superior court erred in holding that the facts underlying Reeves's claims were necessarily outside of policy coverage. The judgment is therefore REVERSED and this case is REMANDED for further proceedings. CARPENETI, Justice, not participating. . Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997) (citing Willner's Fuel Distribs., Inc. v. Noreen, 882 P.2d 399, 403 n. 7 (Alaska 1994)). . Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998) (citations omitted). . Jones v. Horace Mann Ins. Co., 937 P.2d 1360, 1361 (Alaska 1997) (citing Bishop v. Municipality of Anchorage, 899 P.2d 149, 153 (Alaska 1995)). . See Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136, 1139 (Alaska 1974). . Shade v. Co & Anglo Alaska Serv. Coip., 901 P.2d 434, 437 (Alaska 1995) (citations omitted). . Id. (citing Alaska R. Civ. P. 56(c),(e)); Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991). . Alaska Pacific Assurance Co. v. Collins, 794 P.2d 936, 942 (Alaska 1990) (quoting O'Neill Investigations, Inc. v. Illinois Employers Ins. of Wausau, 636 P.2d 1170, 1173 (Alaska 1981)). . Cox v. Progressive Cas. Ins. Co., 869 P.2d 467, 468 n. 1 (Alaska 1994) (citations omitted). . INA Life Ins. Co. v. Brundin, 533 P.2d 236, 241 (Alaska 1975) (citations omitted). . See id. . Sauer v. Home Indem. Co., 841 P.2d 176, 180 (Alaska 1992). . See Smith v. Great American Ins. Co., 629 P.2d 543, 545-46 (Alaska 1981) (citing Afcan v. Mutual Fire, Marine and Inland Ins. Co., 595 P.2d 638, 645 (Alaska 1979)). . See Afcan, 595 P.2d at 645. . CHI of Alaska, Inc. v. Employers Reins. Corp., 844 P.2d 1113, 1115-16, n. 5 (Alaska 1993) (citing Afcan, 595 P.2d at 645). . See id.; Continental Ins. Co. v. United States Fidelity & Guar. Co., 528 P.2d 430, 434-35 (Alaska 1974). . INA Life Ins. Co. v. Brundin, 533 P.2d 236, 242 n. 23 (Alaska 1975) (quoting 10 Couch on Insurance % 41:6 (2d ed.1962)). . 794 P.2d 936, 943 & n. 7 (Alaska 1990). . 864 F.2d 648 (9th Cir.1988). . Id. at 650. . Id. at 652. . Id. at 652. . 221 Cal.App.3d 961, 270 Cal.Rptr. 719 (1990). . 108 Nev. 729, 837 P.2d 858 (1992). . 22 Cal.App.4th 1508, 27 Cal.Rptr.2d 841 (1994). But see Knutson Constr. Co. v. St. Paul Fire Marine Ins. Co., 396 N.W.2d 229, 234-38 (Minn.1986) (holding losses caused by subcontractor's faulty work not covered under broad form endorsement). . Cases holding that a completed building is a builder's product include Indiana Ins. Co. v. DeZutti, 408 N.E.2d 1275, 1279-80 (Ind.1980); Commerce Ins. Co. v. Betty Caplette Builders, Inc., 420 Mass. 87, 647 N.E.2d 1211, 1213 (1995) (citing cases); Knutson Constr. Co. v. St. Paul Fire & Marine Ins. Co., 396 N.W.2d 229, 236 (Minn.1986); Gene & Harvey Builders, Inc. v. Pennsylvania Mfrs. Ass'n Ins. Co., 512 Pa. 420, 517 A.2d 910, 912-13 (1986); Federated Serv. Ins. Co. v. R.E.W., Inc., 53 Wash.App. 730, 770 P.2d 654, 655, 657 (1989). Cases holding that a completed building is not a builder's product include Reeder, 270 Cal.Rptr. at 728; Stratton & Co. v. Argonaut Ins. Co., 220 Ga.App. 654, 469 S.E.2d 545, 547-48 (1996); Mid-United Contractors, Inc. v. Providence Lloyds Ins. Co., 754 S.W.2d 824, 826 (Tex.App.1988). . 270 Cal.Rptr. at 728 (emphasis removed). . Fejes relies on Prudential—LMI Commercial Ins. Co. v. Reliance Ins. Co., 22 Cal.App.4th 1508, 27 Cal.Rptr.2d 841, 843 (1994), and Maryland Cos. Co. v. Reeder, 221 Cal.App.3d 961, 270 Cal.Rptr. 719 (1990). . AIC relies on American States Ins. Co. v. Hanson Indus., 873 F.Supp. 17, 23-24 (S.D.Tex.1995); Reliance Ins. Co. v. Povia-Ballantine Corp., 738 F.Supp. 523, 525 (S.D.Ga.1990), aff'd, 927 F.2d 614 (11th Cir.1991); Borden, Inc. v. Affiliated FM Ins. Co., 682 F.Supp. 927, 930-31 (S.D.Ohio 1987), aff'd, 865 F.2d 1267 (6th Cir. 1989); Taylor-Morley-Simon, Inc. v. Michigan Mut. Ins. Co., 645 F.Supp. 596, 600 (E.D.Mo.1986), aff'd, 822 F.2d 1093 (8th Cir. 1987); Rieder v. Cherokee Ins. Co., 635 F.Supp. 699, 702 (E.D.Pa.1986), aff'd, 813 F.2d 398 (3d Cir.1987); Gary L. Shaw Builders, Inc. v. State Auto. Mut. Ins. Co., 182 Ga.App. 220, 355 S.E.2d 130, 135 (1987); Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283, 1284-85 (Ind.1991). . 108 Nev. 729, 837 P.2d 858, 860-61 (1992). . McKellar, 837 P.2d at 860-61 n. 4 (quoting J. Gibson, Broad Fonn Property Damage Coverage: Analysis, Application and Alternatives 12-15 (Inti. Risk Mgt. Inst., Inc.2d ed.1982)). . Maryland Cas. Co. v. Reeder, 270 Cal.Rptr. at 729-30; Prudential-LMI Commercial Ins. Co. v. Reliance Ins. Co., 21 Cal.Rptr.2d at 844. . Prudential-LMI, 27 Cal.Rptr.2d at 844 (quoting Wielinski & Gibson, Broad Form Property Damage Coverage (3d ed.1992) at 99 (internal citations omitted)).

10396327

Kenneth D. OWSICHEK, Appellant, v. STATE of Alaska, GUIDE LICENSING AND CONTROL BOARD, Appellee

Owsichek v. State, Guide Licensing & Control Board

1988-10-21

No. S-1650

488

499

763 P.2d 488

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Kenneth D. OWSICHEK, Appellant, v. STATE of Alaska, GUIDE LICENSING AND CONTROL BOARD, Appellee.

Kenneth D. OWSICHEK, Appellant, v. STATE of Alaska, GUIDE LICENSING AND CONTROL BOARD, Appellee. No. S-1650. Supreme Court of Alaska. Oct. 21, 1988. Rehearing Denied Dec. 5, 1988. Charles E. Tulin, Anchorage, for appellant. Michael G. Hotchkin and Sarah E. McCracken, Asst. Attys. Gen., Anchorage, Ronald W. Lorensen, Acting Atty. Gen., Juneau, for appellee.

7419

45561

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. RABINOWITZ, Chief Justice. We are called upon to decide whether two statutes, AS 08.54.040(a)(7) & .195, comport with article VIII, section 3 of the Alaska Constitution. These statutes autho rize the Guide Licensing and Control Board to grant hunting guides "exclusive guide areas," geographic areas in which only the designated guide may lead hunts and from which all other guides are excluded. Licensed hunters, including other guides, may hunt recreationally in these areas, but only the holder of the exclusive guide area may lead hunts professionally. I. In 1973 the legislature created the Guide Licensing and Control Board ("GLCB" or "the Board"). Ch. 17, § 1, SLA 1973. This act set forth the composition, powers and duties of the Board, established guidelines for different classes of guide licenses, defined unlawful acts, and provided for the disciplining of guides. Id. It also authorized the Board generally to "regulate activity" of guides, AS 08.54.040(a)(3), and to adopt regulations "required by this chapter or reasonably necessary for its administration." Id. at 08.54.050. The legislative history reveals that the purposes of the act were "to protect fish and game management" and "to get competent people as guides in Alaska." Alaska Legislative Committee Minutes Microfiche No. 37, House Judiciary Committee, H.B. 1, at 20 (Feb. 2, 1973). One of the first activities of the Board was to establish a scheme of "exclusive guide areas" (EGAs) and "joint use areas." Under this system, a guide would be able to register his camp and be entitled to exclusive guiding privileges in a designated area surrounding it. "Joint use areas" would be assigned where the areas used by two or more guides overlapped. The Board first voted in April 1974 to implement this scheme for Game Management Units 16 and 20. Shortly thereafter, in July 1974, the Board voted to extend the program to Unit 8 (Kodiak Island). For the following year, the Board considered applications for EGAs but took no action. In July 1975, the Board granted dozens of exclusive and joint use areas in the three Units for which the regulation was passed. The Board further resolved at that time to extend the program to eleven more Units, including Unit 19. In January 1976, the Board voted to grant EGAs to qualified guides anywhere in the state. Applications were to be based on "occupancy, use, financial value, and such other qualifications as the Board may prescribe." The Board set a deadline of November 1, 1976, for receipt of applications for EGAs. The Board began granting EGAs in Units other than 8, 16 and 20 in December 1976, starting with Units 23-26. EGAs for other Units were granted gradually over the following months. The Board conducted all of this activity without specific statutory authorization, relying only on the general grant of regulatory power in the 1973 legislation. In 1976 the legislature enacted AS 08.54.040(a)(8) (now AS 08.54.040(a)(7)), which authorized the Board to: establish a quota of licensed operating guides who may operate within designated geographical game units or subunits of the state and provide for an equitable and reasonable procedure for limiting the number of guides to that quota; preference shall be given to qualified available and willing licensed guides who reside within the designated game unit or subunit. Ch. 133, § 1, SLA 1976. This provision took effect January 1, 1977. Id. at § 5. The legislative history reveals that the intent of this section was to ratify the Board's EGA program. Transcript of Senate Resources Committee Hearing on S.B. 661, at 1, 14-15 (March 12, 1976); Transcript of House Resource Committee Hearing on S.B. 661, at 33-34 (April 27, 1976). Finally, in 1986 the legislature enacted AS 08.54.195. This statute for the first time imposed procedures and criteria on the Board with respect to the EGA program. This reform was enacted in response to a "sunset report" on the GLCB by the Division of Legislative Audit, which was harshly critical of the Board's implementation of the EGA program. See Division of Legislative Audit, A Performance Report on the Department of Commerce and Economic Development Guide Licensing and Control Board, Audit Control No. 08.01253-86-R (Nov. 21, 1985). II. Kenneth D. Owsichek is a registered guide who was licensed to lead hunts in Game Management Units 17, 18 and 19 in February 1976. He alleges that he had worked as an assistant guide in this area from 1972 to 1976. He claims that in January 1976, upon passing his guide license examination, he invested $300,000 to build a lodge and several cabins together with other facilities for a full-scale guiding operation on Lake Clark. He also claims to have spent $150,000 on four aircraft to fly in clients. Owsichek's licensing and concurrent investments occurred at approximately the same time the GLCB decided to extend the EGA program on a statewide basis. Accordingly, Owsichek submitted an application for EGAs in Units 17 and 19 before the November 1, 1976, deadline established by the Board. The Board considered applications for EGAs in Units 17 and 19 in its December 1977 meeting. Owsichek's application was denied on the ground that he had not submitted "evidence of contracts for guided hunts in the area for two of the five years preceding the application." Owsichek petitioned for review of this decision. In November 1978, the Attorney General's office found that, based on contracts submitted for hunts in 1976, 1977 and 1978, he was qualified to receive an EGA in Units 17 and 19, and recommended that the Board adopt this decision. In its December 1978 meeting, the Board resolved "that the portion of Mr. Owsichek's application that is not in conflict with presently granted gide [sic] areas be allowed. That no portion of the application that overlaps or is presently in joint use be granted." By letter dated February 5, 1979, the Board informed Owsichek of its decision and assigned him area 19:38, in Unit 19. Owsichek objected to this decision because he was unable to land his planes within the areas granted to him, rendering them "un-huntable." On April 6, 1979, Owsichek filed a complaint in superior court challenging the Board's actions. His amended complaint alleged that: (1) prior to January 1, 1977, the Board lacked authority to promulgate regulations creating EGAs; (2) the actions of the Board violated due process and equal protection under the federal and state constitutions; (3) the actions of the Board were an unconstitutional taking of property; (4) AS 08.54.040(a)(8) was an unconstitutional delegation of authority because of the lack of standards; (5) the statutes and regulations constituted an unlawful impairment of contracts under the Alaska Constitution; (6) the regulations did not comply with what standards existed in the statute; and (7) he suffered damages. By way of relief Owsichek sought a declaration that the Board's assigning of EGAs is unconstitutional and that he is entitled to recover damages against the state in an amount in excess of $100,000 as a consequence of the state's illegal and unconstitutional actions. After considering the briefs and hearing oral arguments, the superior court affirmed the actions of the Board, holding "that the Board did not commit any error or abuse of discretion, that its regulations comport with the governing statutes, and that no constitutional infirmity exists in the statutes, regulations or Board decision." This appeal followed. III. A. Owsichek argues that the EGA statutes and regulations violate the common use clause of the Alaska Constitution, which provides: Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use. Alaska Const., art. VIII, § 3. The state argues that this clause is a broad grant of authority to the state to manage these resources, and that it places no limitations on this authority greater than those contained in other constitutional provisions, such as equal protection. We observe initially that, in guaranteeing people "common use" of fish, wildlife and water resources, the framers of the constitution clearly did not intend to prohibit all regulation of the use of these resources. Licensing requirements, bag limits, and seasonal restrictions, for example, are time-honored methods of conserving the resources that were respected by delegates to the constitutional convention. Questions presented by this case concern the type and extent of permissible regulation consistent with common use. This court has never considered these questions before. However, in four cases, we have indicated an intent to apply the common use clause in a way that strongly protects public access to natural resources. First, with respect to article VIII generally, we have written, "A careful reading of the constitutional minutes establishes that the provisions in article VIII were intended to permit the broadest possible access to and use of state waters by the general public." Wernberg v. State, 516 P.2d 1191, 1198-99 (Alaska 1973). Given the text of the common use clause, the same policy should apply to wildlife as well. In CWC Fisheries v. Bunker, 755 P.2d 1115 (Alaska 1988), we addressed the question of whether a state tidelands grant included an exclusive right of fishery, or whether it was subject to a public trust easement. In holding the latter, we relied in part on the common use clause. While specifically declining to determine whether this clause imposed a higher duty than that imposed by common law public trust principles, id. at 1120 n. 10, we stated, "At least in the absence of some clear evidence to the contrary, we will not presume that the legislature intended to take an action which would, on its face, appear inconsistent with the plain wording of this constitutional mandate." Id. at 1120. In State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), appeal dismissed, 467 U.S. 1201, 104 S.Ct. 2379, 81 L.Ed.2d 339 (1984), we addressed the constitutionality of limited entry fishing. Limited entry fishing bears an obvious similarity to the EGA scheme in that both place restrictions on the commercial harvesting of a natural resource by giving a special status to a limited number of licensees. In Ostrosky we stated: [W]e have difficulty squaring the section 3 reservation of fish to the people for common use with a system which grants an exclusive right to fish to a select few who may continue to exercise that right season after season. We accept, therefore, at least for the purposes of this case, the proposition that limited entry is inconsistent with the command of article VIII, section 3. Id. at 1189. In Ostrosky we held that the Limited Entry Act was not unconstitutional because of a 1972 constitutional amendment explicitly permitting limited entry to fisheries, notwithstanding section 3. Id. at 1190. In a subsequent limited entry fishing case, Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256 (Alaska 1988), we stated: In State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), we noted that there is a tension between the limited entry clause of the state constitution and the clauses of the constitution which guaranty open fisheries. [Citing sections 3 and 15 of article VIII] We suggested that to be constitutional, a limited entry system should impinge as little as possible on the open fishery clauses consistent with the constitutional purposes of limited entry, namely, prevention of economic distress to fishermen and resource conservation. Id. at 1266. Since there is no constitutional amendment authorizing EGAs, we must in this case address a common use question similar to that which was not addressed in Ostrosky. We do so, however, in light of our observations in Wernberg, CWC Fisheries, Ostrosky, and Johns that the common use clause was intended to guarantee broad public access to natural resources. B. We begin by examining constitutional history to determine the framers' intent in enacting the common use clause. This was a unique provision, not modeled on any other state constitution. Its purpose was anti-monopoly. This purpose was achieved by constitutionalizing common law principles imposing upon the state a public trust duty with regard to the. management of fish, wildlife and waters. The framers' reliance on historic principles regarding state management of wildlife and water resources is evident from a written explanation in the committee materials for the term "reserved to the people for common use." This discussion also highlights an intent to prohibit "exclusive grants or special privilege[s]." Ancient traditions in property rights have never recognized that a private right and title can be acquired by a private person to wildlife in their natural state or to water in general. The title remained with the sovereign, and in the American system of government with its concept of popular sovereignty this title is reserved to the people or the state on behalf of the people. The expression "for common use" implies that these resources are not to be subject to exclusive grants or special privilege as was so frequently the case in ancient royal tradition. Rather rights to use are secured by the general laws of the state. In all English and American legal systems ownership of water cannot be asserted, rights acquire only to the use of water. Once wildlife is captured and removed from their natural state possesso-ry right accrues to the captor, provided that the wildlife was captured in conformity with provisions of law. Alaska Constitutional Convention Papers, Folder 210, paper prepared by Committee on Resources entitled "Terms" (emphasis added, except to "use"). Because an EGA is clearly a type of monopoly, "exclusive grant," or at least a "special privilege," this history strongly suggests that the statutes at issue here are unconstitutional. However, this history also states that "rights to use are secured by the general laws of the state," clearly giving the legislature some leeway in regulating use of the resources. The state finds support for its position in a debate that occurred at the convention over registered trap lines. This debate is significant because, like EGAs, registered trap lines would allow a prior existing user to exclude newcomers from the privilege of harvesting the wildlife resource. On the floor of the convention, a delegate asked whether the common use clause would prohibit registered trap lines, and the spokesman for the Resources Committee responded that it would be "arguable." 4 Proceedings of the Alaska Constitutional Convention 2462-63 (Jan. 17,1956). In response to this concern, the Resources Committee inserted language in the commentary to the common use clause authorizing registered trap lines: "This provision does not apply to the domestication of fur-bearing animals or other animals subject to intensive culture, to fish in private ponds, or to registered trap lines if authorized by law." 6 Proceedings of the Alaska Constitutional Convention app. V, at 98 (Commentary on Article on State Lands and Natural Resources, Jan. 16, 1956) (emphasized language added after first draft; cf. id. at 83 (Dec. 16, 1955)). Resolution of the trap line issue begs the question in the instant case. One might argue that addition of the language excluding registered trap lines from the effect of the common use clause was intended to authorize the legislature to enact this type of regulation generally, and that the reasoning should extend to EGAs. However, the language in the commentary is highly specific, which more likely suggests that the common use clause would prohibit all similar regulation, with registered trap lines as a narrow exception in response to the political pressures of the moment. In a discussion about fishing in lakes, the Constitutional Convention underscored its intent that the public retain broad access to fish, wildlife and water resources, and that these resources not be the subject of private grants. In floor debates, a question arose about the status of a natural lake falling within the boundaries of someone's private property. The delegates agreed that the common use clause guaranteed the public's right to use the lake for fishing, although it did not authorize a trespass across the landowner's property to get to the lake. 4 Proceedings of the Alaska Constitutional Convention 2460 (Jan. 17, 1956). The Convention made it clear that only fish in small private ponds may be owned free of the public's right of access. See id. at 2460-61; 6 Proceedings of the Alaska Constitutional Convention app. V, at 98 (Commentary on Article on State Lands and Natural Resources, Jan. 16, 1956). This confirms the view of the common use clause and the public trust expressed in CWC Fisheries v. Bunker, 755 P.2d 1115 (Alaska 1988), holding that a grant of a fee interest in tidelands remains impressed with a public trust easement. It also reinforces our conclusion that grants of exclusive rights to harvest natural resources listed in the common use clause should be subjected to close scrutiny. C. As we have noted, the drafters of the common use clause apparently intended to constitutionalize historic common law principles governing the sovereign's authority over management of fish, wildlife and water resources. A review of the history of wildlife law will therefore shed further light on the central issue in this case. The Supreme Court traced the history of wildlife law from its roots in ancient Rome through its English common law development and transfer to this country in Geer v. Connecticut, 161 U.S. 519, 522-29, 16 S.Ct. 600, 601-04, 40 L.Ed. 793, 794-97 (1896). In that case, the Court affirmed the defendant's conviction, upholding a state statute forbidding transportation of certain game birds killed in Connecticut across state lines. The Court noted that in England, the right to hunt and fish "[was] vested in the King alone and from him derived to such of his subjects as [had] received the grants of a chase, a park, a free warren, or free fishery." Id. at 527, 16 S.Ct. at 603, 40 L.Ed. at 796 (quoting 2 W. Blackstone, Commentaries * 410). As a recent authority explains: Stripped of its many formalities, the essential core of English wildlife law on the eve of the American Revolution was the complete authority of the king and Parliament to determine what rights others might have with respect to the taking of wildlife. M. Bean, The Evolution of National Wildlife Law 12 (rev. ed. 1983). The Geer court asserted that this authority to regulate taking of wildlife passed to the states upon separation from England. 161 U.S. at 528, 16 S.Ct. at 604, 40 L.Ed. at 796. However, unlike the authority vested in the King, the authority of the states, with their guarantees of democratic government, was not plenary. Whilst the fundamental principles upon which the common property in game rests have undergone no change, the development of free institutions has led to the recognition of the fact that the power or control lodged in the state, resulting from this common ownership, is to be exercised like all other powers of government as a trust for the benefit of the ;people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good. Id. at 529, 16 S.Ct. at 604, 40 L.Ed. at 797 (emphasis added). The Court held that the state's "ownership" of wildlife, in trust for the people, authorized the statute at issue in that case. Id. The framers of the common use clause probably relied heavily on Geer. The following statement from the constitutional papers, as quoted above, closely tracks the reasoning of Geer: The title remained with the sovereign, and in the American system of government with its concept of popular sovereignty this title is reserved to the people or the state on behalf of the people. The expression "for common use" implies that these resources are not to be subject to exclusive grants or special privilege as was so frequently the case in ancient royal tradition. Alaska Constitutional Convention Papers, Folder 210, paper prepared by Committee on Resources entitled "Terms." Thus, common law principles incorporated in the common use clause impose upon the state a trust duty to manage the fish, wildlife and water resources of the state for the benefit of all the people. We have twice recognized this duty in our prior decisions. In Metlakatla Indian Community, Annette Island Reserve v. Egan, 362 P.2d 901, 915 (Alaska 1961), aff'd, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962), we stated: These migrating schools of fish, while in inland waters, are the property of the state, held in trust for the benefit of all the people of the state, and the obligation and authority to equitably and wisely regulate the harvest is that of the state. (Emphasis added.) Similarly, in Herscher v. State, Department of Commerce, 568 P.2d 996, 1003 (Alaska 1977), we noted that the state acts "as trustee of the natural resources for the benefit of its citizens." The extent to which this public trust duty, as constitutionalized by the common use clause, limits a state's discretion in managing its resources is not clearly defined. The state argues that it imposes no limit at all. While acknowledging that the common use clause constitutionalizes the state's trust duty, the state asserts, "The sovereign's power to allow and control use of the resources is broad, and restricted only by other constitutional limitations such as equal protection." This assertion clearly overstates the extent of the state's authority under the public trust duty and the common use clause. First, as noted above, this court has stated in at least four cases that the common use clause is intended to provide independent protection of the public's access to natural resources. See Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1266 & n. 12 (Alaska 1988); CWC Fisheries v. Bunker, 755 P.2d 1115, 1120 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184, 1189, 1191 (Alaska 1983), appeal dismissed, 467 U.S. 1201, 104 S.Ct. 2379, 81 L.Ed.2d 339 (1984); Werberg v. State, 516 P.2d 1191, 1198-99 (Alaska 1973); see also Ostrosky, 667 P.2d at 1196 (Rabinowitz, J., dissenting). Second, under the state's interpretation, the common use clause would be a nullity. "It is a well accepted principle of judicial construction that, whenever reasonably possible, every provision of the Constitution should be given meaning and effect, and related provisions should be harmonized." Park v. State, 528 P.2d 785, 786-87 (Alaska 1974). To give meaning and effect to the common use clause, it must provide protection of the public's use of natural resources distinct from that provided by other constitutional provisions. Third, the history of the common use clause, as noted above, reveals an anti-monopoly intent to prohibit "exclusive grants" and "special privilege[s]," wholly apart from the limits imposed by other constitutional provisions. Finally, cases applying the public trust doctrine in navigable waters have frequently struck down state actions in violation of the trust without any reference to either federal or state constitutions. A good example is the lodestar of American public trust law, Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). In that case, the Illinois legislature purported to grant to a railroad more than 1,000 acres of land underlying Lake Michigan in the harbor of Chicago. The Court applied the doctrine of the public trust in navigable waters to uphold the legislature's later revocation of the grant: A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested . than it can abdicate its police powers in the administration of government and the preservation of the peace. Id. at 453, 13 S.Ct. at 118, 36 L.Ed. at 1043. In light of this historical review we conclude that the common use clause was intended to engraft in our constitution certain trust principles guaranteeing access to the fish, wildlife and water resources of the state. The proceedings of the Constitutional Convention, together with the common law tradition on which the delegates built, convince us that a minimum requirement of this duty is a prohibition against any monopolistic grants or special privileges. Accordingly, we are compelled to strike down any statutes or regulations that violate this principle. D. We conclude that exclusive guide areas and joint use areas fall within the category of grants prohibited by the common use clause. These areas allow one guide to exclude all other guides from leading hunts professionally in "his" area. These grants are based primarily on use, occupancy and investment, favoring established guides at the expense of new entrants in the market, such as Owsichek. To grant such a special privilege based primarily on seniority runs counter to the notion of "common use." Moreover, the grants are not limited in duration. The statutes allow holders of EGAs to sell their "improvements," and the GLCB routinely transfers the EGA to the purchaser of the improvements or to the guide's designated successor. This practice allows a guide to effectively sell his EGA as if it were a property interest. See Division of Legislative Audit, A Performance Report on the Department of Commerce and Economic Development Guide Board 10-11, Audit Control No. 08-1305-88-R (Dec. 11, 1987) [hereinafter "1987 Report"]. Although the Board justified the program to the legislature as a means of improving wildlife management, see Transcript of Senate Resources Committee Hearing on S.B. 661 (March 12, 1976); Transcript of House Resource Committee Hearing on S.B. 661 (April 27, 1976), it is apparent that area assignments are not based primarily on wildlife management concerns. Rather, as authorized by AS 08.564.195(b) and 12 AAC 38.220(c) & (d) (eff. 5/12/78, am. 10/15/82), the Board bases its decisions on use, occupancy and investment. See 1987 Report at 9-10. Thus, the EGA program cannot be justified as a wildlife management tool like other restrictions on common use, such as hunting seasons and bag limits. The state argues that EGAs do not deny Owsichek common use of the wildlife resources because he, like any other member of the public, may hunt recreationally in these areas. We reject this argument. In CWC Fisheries v. Bunker, 755 P.2d 1115, 1121 n. 14 (Alaska 1988), we noted that the public trust doctrine guaranteed fishermen access to public resources for "private commercial purposes" as well as for recreation. The same rationale applies to professional hunting guides under the common use clause. The common use clause makes no distinction between use for personal purposes and use for professional purposes. Nothing in this opinion is intended to suggest that leases and exclusive concessions on state lands are unconstitutional. The statutes and regulations of the Department of Natural Resources authorize leases and concession contracts of limited duration, subject to competitive bidding procedures and valuable consideration. See AS 38.05.070-.075 (authorizing leases and setting forth procedures); AS 41.21.027 (authorizing concession contracts in state parks); 11 AAC 14.200-.260, 14.010-130 (establishing procedures for awarding concession contracts); see also Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006, 1009-11 (Alaska 1967) (discussing procedures required by law for leasing of state lands); CWC Fisheries v. Bunker, 755 P.2d 1115, 1120-21 (Alaska 1988) (stating in dictum that shore fisheries leasing program would not violate public trust, in part because leases were of finite duration and required annual rental). In contrast, EGAs are not subject to competitive bidding, provide no remuneration to the state, are of unlimited duration, and are not subject to any other contractual terms or restrictions. Rather, as discussed above, they are granted essentially on the basis of seniority, with no rental or usage fee, for an unlimited duration, and are administered in such a way that guides may transfer them for a profit as if they owned them. In these respects the EGAs resemble the types of royal grants the common use clause expressly intended to prohibit. Leases and concession contracts do not share these characteristics. For these reasons, we hold that AS 08.-54.040(a)(7), AS 08.54.195, and the regulations of the Board permitting the assignment of exclusive guide areas are in contravention of article VIII, section 3 of the Alaska Constitution. Accordingly, Owsi-chek is entitled to relief declaring the EGAs that have been granted by the Board to be without legal force. IV. In addition to declaratory relief, Owsichek seeks damages against the state. Because the superior court did not reach this issue, we would ordinarily remand for further proceedings. However, when an issue is raised in the trial court and is adequately briefed by all concerned parties on appeal, this court may consider it. Mullen v. Christiansen, 642 P.2d 1345, 1350-51 (Alaska 1982). Owsichek bases his claim for damages on allegations that the Board acted without authority in enacting the EGA regulations initially and that the regulations failed to comply with the legislation that was later passed. We need not decide whether these allegations are true. Even if the Board acted without authority or failed to comply with statutory standards, it is immune from suit under the discretionary function exception provided for in the Tort Claims Act, as interpreted by our prior decisions. In at least two cases, we have held that acts of public officials who in good faith misinterpret the law and act in excess of their authority are immune from suit. Earth Movers of Fairbanks, Inc. v. State, 691 P.2d 281, 283-84 (Alaska 1984) (police officer lacked authority to temporarily reduce speed limit); Bridges v. Alaska Housing Authority, 375 P.2d 696, 698, 702 (Alaska 1962) (housing authority lacked power to use declaration of taking). We have also held that decisions involving the formulation of basic policy are entitled to immunity. See Industrial Indemnity Co. v. State, 669 P.2d 561, 563 (Alaska 1983). The EGA program was a major policy initiative of the GLCB. Therefore, even if the Board acted in excess of its authority or failed to comply with the requirements of the statute, it is immune from suit under the discretionary function exception provid ed for in AS 09.50.250. Furthermore, there is no evidence that the Board acted in bad faith. V. Owsichek argues that it was improper for the superior court to assess attorney's fees against him, on the ground that he is a public interest litigant. See Southeast Alaska Conservation Council v. State, 665 P.2d 544, 553-54 (Alaska 1983). Because the state is no longer the prevailing party, the fee award must be vacated and remanded for redetermination. We note, however, that successful public interest litigants may be entitled to full attorney's fees. City of Anchorage v. McCabe, 568 P.2d 986, 993-94 (Alaska 1977). Thus, the question of whether Ow-sichek is a public interest litigant may be relevant on remand. Since the parties have fully briefed the issue, we will address it here. We have consistently held that a party will not be deemed a public interest litigant where the party had sufficient economic incentive to bring the lawsuit without regard to the public interest. E.g., Rosen v. State Board of Public Accountancy, 689 P.2d 478, 480 (Alaska 1984). As discussed above, Owsichek claims that the EGAs in his Units jeopardized the $450,000 he had invested in his guiding operation, and that he suffered over $100,000 in damages. This was clearly sufficient economic incentive to bring the suit. Therefore, we conclude that he is not a public interest litigant. REVERSED AND REMANDED. . EGAs and joint use areas will be referred to collectively as EGAs. . The Board of Game has divided the state into twenty-six Game Management Units, primarily for purposes of establishing hunting seasons and bag limits for different species. For these purposes, many Units are divided into several subunits with different applicable regulations. See AS 16.05.255; 5 AAC 78.001-.600, 80.-001-.600, 83.001-600, 86.001-.910, 88.001-.910. The Guide Licensing and Control Board has adopted these Units for purposes of licensing hunting guides. 12 AAC 38.200(b) (Eff. 6/28/74). Each licensed guide may be certified to practice in up to three Units. 12 AAC 38.-200(d) (Eff. 6/28/74). Unit 16 is in South Central Alaska, near Anchorage, and Unit 20 occupies a large part of Interior Alaska, including Fairbanks. .Alaska Statute 08.54.195 provides: Restricted guide areas, (a) Under AS 08.54.-040(a)(7), the board may establish and assign restricted guide areas for master guides or registered guides. The board shall adopt regulations that establish uniform and consistent criteria, including a point system, to be used by the board when it establishes and assigns a restricted guide area. (b) The board shall consider the following factors before it assigns a restricted guide area: (1) the extent to which the guide who has applied for the area has guided in the game management unit in which the area is located; (2) the extent to which the guide occupied and invested in the area; (3) the effects, including the economic effect, on other guides that would result from creation of the area; (4) big game populations in the area; (5) the land ownership status of the area; and (6) other relevant facts or circumstances. (c) The board may adopt regulations limiting the number of clients with which a guide may contract for hunts in a restricted guide area used by more than one guide. (d) Unless the board determines after a public hearing that it is not in the public interest to do so, the board may transfer a restricted guide area to a person qualified for assignment who has been recommended by the guide to whom the area is assigned, or by a person authorized to represent the guide, if the recommendation is made (1) after five years have elapsed from the date of the assignment of the guide area; or (2) during the first five years after the date of assignment and the guide has died or suffered a major disability, as defined by the board. (e)A guide may not sell or lease a restricted guide area. A guide may sell or otherwise transfer a lodge, camp, or other lawful improvement to property located in a restricted guide area. Sales price may not exceed fair market value. . The 1986 legislation also modified AS 08.54.-040(a)(8) in response to the sunset report. Specifically, the legislation (1) renumbered it subsection .040(a)(7), (2) required "an equitable, reasonable, and consistent procedure" (emphasized language added in 1986), and (3) provided that "preference may be given" to local resident guides (instead of shall). Ch. 71, § 6, SLA 1986. . Units 17, 18 and 19 occupy a large area overlapping parts of Southwest, Western and Interi- or Alaska. See 5 AAC 83.005(d) (Eff. 7/5/85), 86.005(a) (Eff. 7/5/85), 88.005(b) (Eff. 7/5/85). . As discussed above, the Board had decided to grant EGAs in Unit 19 in July 1975, but did not vote to extend the program to the remainder of the state, including Units 17 and 18, until January 1976, the month Owsichek passed his guide licensing exam and allegedly began building his improvements. . Before considering the case on the merits, the superior court had dismissed the action as an untimely appeal. This court reversed and remanded, holding that the claim for declaratory relief should have been treated as an independent action rather than an appeal, and that due to surprise and excusable neglect the time limit for appeals should have been relaxed as to the claims for damages and an injunction. Owsichek v. State, Guide Licensing and Control Board, 627 P.2d 616 (Alaska 1981). . After the parties filed their initial briefs, we requested supplemental briefing on the question of whether AS 08.54.040(a)(7) and AS 08.54.195 violated article VIII, section 3, of the Alaska Constitution. .The state also argues that Owsichek has no standing to challenge the system as it existed before January 1, 1977, when AS 08.54.-040(a)(l)(7) went into effect, because the Board did not establish any EGAs in Owsichek's Units before that date. In light of our holding that Owsichek is not entitled to damages, see infra Part IV, we need not address this issue. The declaratory relief to which he is currently entitled is unaffected by the date on which he attained standing. The state does not argue that Owsichek lacks standing under the common use clause. We note that we would reject such an argument. We believe that a professional hunting guide's "use" of the wildlife resource is sufficiently direct that he falls within the protection of the common use clause. See infra note 15. . Similarly, it has been stated: The common use clause necessarily contemplates that resources will remain in the public domain, and will not be ceded to private ownership. Since the right of common use is guaranteed expressly by the constitution, it must be viewed as a highly important interest running to each person within the state. State v. Ostrosky, 667 P.2d 1184, 1196 (Alaska 1983) (Rabinowitz, J., dissenting). . Responding to a question about this provision on the floor of the convention, a member of the Resources Committee explained, "The language here has a lot of history behind it.... The language in this section harks back to the old tradition whereby wildlife in its natural state was in the presumed ownership of the sovereign until reduced to possession." 4 Proceedings of the Alaska Constitutional Convention 2492 (Jan. 18, 1956). . The Court overruled Geer's state ownership doctrine in Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). That case involved facts almost identical to Geer: the Oklahoma statute at issue forbade the export of minnows taken from the waters of the state. See id. at 323, 99 S.Ct. at 1729, 60 L.Ed.2d at 254. The Court struck down the statute as vio-lative of the commerce clause. Id. at 338, 99 S.Ct. at 1737, 60 L.Ed.2d at 263. The Court found the state ownership doctrine to be a legal fiction that created anomalies and did not conform to "practical realities." Id. at 335, 99 S.Ct. at 1735, 60 L.Ed.2d at 261. Nothing in the opinion, however, indicated any retreat from the state's public trust duty discussed in Geer. Indeed, the Court stated, "[T]he general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th century legal fiction of state ownership." Id. at 335-36, 99 S.Ct. at 1735-36, 60 L.Ed.2d at 261. As one U.S. District Court noted in a post-Hughes case: Under the public trust doctrine, the State of Virginia and the United States have the right and the duty to protect and preserve the public's interest in natural wildlife resources. Such right does not derive from ownership of the resources but from a duty owing to the people. In re Steuart Transp. Co., 495 F.Supp. 38, 40 (E.D.Va.1980) (allowing federal and state governments to recover damages for migratory waterfowl killed in oil spill). After Hughes, the statements in the Alaska Constitutional Convention regarding sovereign ownership, quoted supra, are technically incorrect. Nevertheless, the trust responsibility that accompanied state ownership remains. . Both the statute and the regulations require the Board also to consider "big game populations in the area." AS 08.54.195(b)(4); see 12 AAC 38.220(d)(1). The regulations make it clear that this is a secondary consideration. Id. Moreover, the context of this requirement in both the statute and the regulation suggests that it was enacted only to determine how many guides the game would support economically, not to benefit the game resource directly. Finally, it is clear that the Board simply does not pay much attention to this criterion. A recent legislative report concluded, "Use of independent game information for specific regions of the State no longer appears to be a significant factor in the Board's decision-making process." 1987 Report at 10. . We acknowledge that the EGA program may facilitate wildlife management by giving each guide having an EGA an incentive to conserve wildlife. However, without a specific constitutional provision allowing EGAs, mere usefulness in wildlife management does not suffice to save the EGA program from unconstitutionality under the anti-monopolistic common use clause. In the analogous area of limited entry in commercial fisheries, one purpose of limited entry has always been conservation related. However, this was not sufficient to saye precursors to the present limited entry system from findings of unconstitutionality prior to the constitutional amendment allowing limited entry. This history is detailed in State v. Ostrosky, 667 P.2d 1184, 1188, 1189 (Alaska 1983). . Admittedly, there is a difference between commercial fishermen and professional guides: a commercial fisherman takes his catch himself before selling it to others for consumption, while a hunting guide does not actually take the game, a privilege reserved for the client. We view this as an insignificant distinction that does not remove professional hunting guides from protection under the common use clause. The work of a guide is so closely tied to hunting and taking wildlife that there is no meaningful basis for distinguishing between the rights of a guide and the rights of a hunter under the common use clause. . The right to lead hunts professionally is a significant one. Nonresidents of Alaska are required to hire a guide in order to hunt brown bear, polar bear, and sheep, AS 16.05.407, and nonresident aliens must hire a guide to hunt any big game. AS 16.05.408. Thus, the holder of an EGA has a monopoly over this market, which is a substantial one in Alaska, for his geographic area. . We note that EGAs may also violate article VIII, section 17. This section of Alaska's constitution provides: Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation. In Gilman v. Martin, 662 P.2d 120, 126 (Alaska 1983), we noted that this provision may require "more stringent review" of a statute than does the equal protection clause in cases involving natural resources. There is much less constitutional history of this clause than of the common use clause. The commentary states in full, "This section is intended to exclude any especially privileged status for any person in the use of natural resources subject to disposition by the state." 6 Proceedings of the Alaska Constitutional Convention app. V, at 99 (Commentary on Article on State Lands and Natural Resources, Jan. 16, 1956) (emphasis added). Because the parties have not briefed the issue and since we are able to decide the case on other grounds, we need not decide this question. . Our resolution of this issue makes it unnecessary for us to decide Owsichek's other challenges to the statutes and to the actions of the Board. . Owsichek does not base his claim for damages on the legislature's enactment of an unconstitutional statute. We note that such a claim would fail under our holding in Vest v. Schafer, 757 P.2d 588, 598 (Alaska 1988), where we wrote, "[W]e do not believe it proper for the judiciary to assess damages against the State on the ground that the legislature enacted a law later held unconstitutional, in the absence of a statute allowing or requiring such damages." . Alaska Statute 09.50.250 provides in part: 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.... However, no action may be brought under this section if the claim (1) . is an action for tort, and 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.... . The parties' briefing assumes that the state was the prevailing party, which is no longer true. However, we have never distinguished between successful and unsuccessful parties in applying our standards for determining whether a party is a public interest litigant, and we see no reason to make such a distinction. Thus, the public interest analysis does not change if Owsi-chek, rather than the state, is viewed as the prevailing party.

10397801

Harry WASSINK and Consuelo Wassink, Appellants, v. Tom HAWKINS, Director, Division of Land and Water Management, Alaska Department of Natural Resources, Elvin E. Johnson, Stephen & Sons, Inc., and the Agricultural Revolving Loan Fund, Appellees

Wassink v. Hawkins

1988-11-04

No. S-2398

971

975

763 P.2d 971

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Harry WASSINK and Consuelo Wassink, Appellants, v. Tom HAWKINS, Director, Division of Land and Water Management, Alaska Department of Natural Resources, Elvin E. Johnson, Stephen & Sons, Inc., and the Agricultural Revolving Loan Fund, Appellees.

Harry WASSINK and Consuelo Wassink, Appellants, v. Tom HAWKINS, Director, Division of Land and Water Management, Alaska Department of Natural Resources, Elvin E. Johnson, Stephen & Sons, Inc., and the Agricultural Revolving Loan Fund, Appellees. No. S-2398. Supreme Court of Alaska. Nov. 4, 1988. J. Jeffrey Mayhook, Hedland, Fleischer, Friedman, Brennan & Cooke, Anchorage, for appellants. Lance B. Nelson, Asst. Atty. Gen., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2558

15731

OPINION COMPTON, Justice. This case arises from an attempt by the Division of Land and Water Management, Alaska Department of Natural Resources, to terminate a land sale contract regarding a Point Mackenzie dairy farm. The purchasers under the contract, Harry and Consuelo Wassink, entered into a stipulation with the state to waive all defenses to a breach of contract action previously filed against them by the state in exchange for a one-year extension of the date of performance. The Wassinks failed to meet the extended deadline, and the state attempted to enter judgment and take back the land. Before the trial court, the Wassinks raised several grounds as to why the stipulation should not be enforced. The trial court held for the state on all grounds. The Wassinks appeal. I.FACTUAL AND PROCEDURAL BACKGROUND On September 11, 1982, the state held a lottery for the disposal of dairy parcels at Point Mackenzie. Melody Wassink, the daughter of Harry and Consuelo Wassink, was the winner of Tract 8, a 474.22 acre parcel. She signed a contract with the state for the purchase of the parcel in the fall of 1982. The contract provided in part: Farm Development Schedule. The Purchaser must comply with the following-schedule of development: By September 11, 1985 the Parcel must be stocked with at least 46 cows. By that date the cows must be regularly milked on the Parcel in a Grade A facility- Melody proceeded to prepare a farm conservation plan and submit loan applications to the state's Agricultural Revolving Loan Fund (ARLF). She entered into a $119,421 clearing loan with the ARLF in December 1982. In November 1984 Melody assigned her interest in the parcel to her parents. The Wassinks assumed Melody's land clearing loan in December 1984. In April 1985 the state approved the Wassinks' modified farm conservation plan. By September 1985 the Wassinks had planted 265 acres. Unfortunately the Wassinks failed to meet the September 1985 deadline of regularly milking in a grade A barn. In November 1985 the Wassinks were notified of their breach of the land sale contract. The Wassinks failed to cure the breach and in December 1985 the director of the Division of Land and Water Management sought to terminate the Wassinks' contract for failure to comply with the September 1985 deadline. In the course of the litigation, the state proposed the stipulation which is the subject of this appeal. In part, the stipulation provides: 2. If, on or before October 1, 1986, the Wassinks have remedied the breaches and deficiencies outlined in the Complaint, the plaintiff agrees that he will stipulate to a dismissal of this lawsuit, with prejudice. 3. If the Wassinks have not strictly and completely remedied all the breaches and deficiencies by October 1, 1986, they agree to waive any and all defenses to this action, whether legal or equitable, by statute or by contract, including, but not limited to, defenses based on the Was-sinks' "substantial compliance" with the terms of the contract, defenses based on any action or inaction of the Agricultural Revolving Loan Fund, including any commitment to lend or disburse monies, and defenses arising out of the burning of or inability to burn berm piles. 5. This stipulation does not in any way bind or affect the Agricultural Revolving Loan Fund. In particular, this stipulation should not be viewed as a guarantee or commitment to lend or disburse monies under any prior loan transactions between defendants Harry and Consuelo Wassink and the Agricultural Revolving Loan Fund, or as a waiver of any defaults under any loan documents between defendants Harry and Consuelo and the Agricultural Revolving Loan Fund. The Wassinks, through their counsel, signed the stipulation in February 1986. In a letter to the Wassinks dated August 25, 1986, Bill Heim, then the Director of the Division of Agriculture, purportedly al tered the conditions in the stipulation. The letter read in part: It has been the policy of ARLF to not have livestock in Alaska before the buildings are ready to shelter them. In the past ARLF has experienced some real disasters by not following this policy. In your case, because of your milking deadline it puts you in a real tight squeeze. Your stipulation requires that cows be milked in your barn on October 1st. I can, and will, give you some leeway on what must be done on this date. One, your barn must be completed, but I can give you a 30 day extension (November 1) that the cows need to be milking. With the schedule as tight as yours this is entirely reasonable. This will give you 30 days more before you must ship your cows. On October 3, 1986, a team from the Divisions of Agriculture, Land and Water Management and Department of Law conducted a Point Mackenzie compliance inspection trip. Their report indicated that "the Wassinks are in the process of constructing 2 barns. Neither barn is complete. The milking parlor is about 1 week away from completion. The foreman feels that they could be milking in about 2 weeks." According to Wassink, sometime after this inspection trip, the State Attorney General's office repudiated the altered conditions contained in the Heim letter. The state acknowledged the repudiation but did not provide a date for it. Because the Wassinks failed to meet the 1985 requirements by October 1, 1986, in March 1987 the state moved for entry of judgment pursuant to the stipulation. As of that date the Wassinks still had not met the contract requirements. Wassink explained that "[o]nce the state repudiated the Bill Heim extension as well as refused to turn over the already-approved cow loan, the Wassinks were forced to miss the extended deadline. They might have fully completed the barn, but saw no purpose in doing so with the state poised to take it away." By agreement of the parties the state's motion was treated as one for summary judgment. The Wassinks argued that the stipulation should be unenforceable on grounds of economic duress, equitable es-toppel, the state's unclean hands, frustrated performance, substantial compliance and the state's modification and waiver of the stipulation. The state argued that the sole issue was whether there was strict compliance by October 1, 1986. The state argued waiver of "any and all defenses" means just that, and is not limited to defenses which arose prior to the stipulation. The superior court, without opinion, granted summary judgment in the state's favor. The Wassinks appeal. II. STANDARD OF REVIEW When reviewing a grant of summary judgment this court must determine whether there was a genuine issue of material fact and whether the moving party was entitled to judgment on the law applicable to the established facts. Zeman v. Lufthansa German Air Lines, 699 P.2d 1274, 1280 (Alaska 1985). The party moving for summary judgment has the burden of proving an absence of issues of material fact. McGee Steel Co. v. State, 723 P.2d 611, 615 (Alaska 1986). The party opposing summary judgment is not required to show it will prevail at trial. But if the movant establishes prima facie that it is entitled to judgment as a matter of law, the party opposing summary judgment must demonstrate that there exists a genuine issue of material fact to be litigated. Champion Oil Co. v. Herbert, 578 P.2d 961, 963 (Alaska 1978), cert. denied, 439 U.S. 980, 99 S.Ct. 565, 58 L.Ed.2d 650 (1979). III. DISCUSSION We begin by considering the question of whether the stipulation is enforceable against the Wassinks, who make several arguments against its enforceability. First, the Wassinks argue that they were under economic duress when they signed the stipulation. We have set forth the test for economic duress as follows: [economic] duress exists where: (1) one party involuntarily accepted the terms of another, (2) circumstances permitted no other alternative, and (3) such circumstances were the result of coercive acts of the other party. Totem Marine Tug & Barge v. Alyeska Pipeline Serv. Co., 584 P.2d 15, 21 (Alaska 1978). The Wassinks argue that they had no reasonable alternative to the stipulation because they were in strained financial circumstances. In Totem we explained that, under the third element of the test, the strained circumstances must have been a result of the other party's "wrongful acts or threats." Id. at 22. According to the Wassinks, the state acted wrongfully in singling them out for foreclosure. However, the evidence the Wassinks offered in the superior court reveals that the farmers not foreclosed upon were in fact in compliance while the Was-sinks were not. The Wassinks failed to offer any evidence that the state did not foreclose on other farmers who, like the Wassinks, failed to meet deadlines. Thus, the Wassinks did not show that their personal financial troubles at the time they signed the stipulation were caused by any wrongful acts or threats by the state. Therefore, the instant stipulation is not unenforceable because of economic duress. Second, the Wassinks allege the stipulation is an adhesion contract. Typically an adhesion contract is a standard form printed contract prepared by one party and submitted to the other on a "take-it- or-leave-it" basis. Standard Oil Co. of Cal. v. Perkins, 347 F.2d 379, 384 n. 5 (9th Cir.1965). In construing such contracts, courts have considered the inequality of bargaining power inherent in such circumstances. Id. We discussed adhesion contracts in Burgess Construction Co. v. State, 614 P.2d 1380, 1383-84 (Alaska 1980). In that case, Burgess contracted with the state to build a portion of a road in Wrangell for over $1 million. The contract included an indemnification clause under which Burgess was required to indemnify the state "on account of the operations of said contractor." When the state tried to enforce the indemnity provision Burgess objected arguing, among other things, that the contract with the state was an adhesion contract. This court concluded that it was not an adhesion contract, noting that it was a commercial contract for a large amount of money between sophisticated parties. In addition, Burgess was not without options in the face of the state's form contract. Finally, none of the standard remedial responses to adhesion contracts were applicable. The instant case is analogous to Burgess. The stipulation dealt with a commercial matter and the Wassinks, even if they are not "sophisticated," were represented by an attorney. Further, the Wassinks were not without options: they could have defended the original suit. Because none of the adhesion requirements are present, the trial court properly found, implicitly, that no issue of fact supported the claim that the stipulation is an adhesion contract. The Wassinks' remaining arguments focus on the state's conduct after the Wassinks signed the 1986 stipulation. The state argues, and the superior court held, that the state's conduct after the stipulation was signed is irrelevant because in the stipulation the Wassinks waived any defenses. The waiver states: If the Wassinks have not strictly and completely remedied all the breaches and deficiencies by October 1, 1986, they agree to waive any and all defenses to this action, whether legal or equitable, by statute or by contract, including, but not limited to, defenses based on the Was-sinks' "substantial compliance" with the terms of the contract, defenses based on any action or inaction of the Agricultural Revolving Loan Fund, including any commitment to lend or disburse monies, and defenses arising out of the burning of or inability to burn berm piles. The Wassinks argue that "any and all defenses to this action" is an ambiguous phrase because it does not clearly distin guish between past and future defenses. We agree. Normally agreements between private parties are upheld and enforced by courts. However, authorities hold that an agreement exempting a party from liability for future willful or negligent conduct should not be enforced where the interest of the public is involved. See Restatement (Second) of Contracts § 195 (1981). Professor Williston observes that even where such an agreement is valid, it is "not favored, however, and, if possible, bargains are construed not to confer this immunity." 15 Williston on Contracts § 1750A, at 144 (3d ed. 1972). The Wassinks have not expressly waived future defenses in the clause at issue. Moreover, because such a waiver is disfavored, we will not infer it. Therefore, we need not address the question of whether this clause is an invalid waiver of future defenses. Instead, we construe the clause to include only defenses which involve action taken by the state prior to the date of the waiver. Given our construction of the waiver clause we turn to the question of whether the state's activity after the date of the stipulation gives rise to the defenses of estoppel, frustration, or waiver. The doctrine of frustration excuses a party from performance where the object of the contract has been rendered impossible or commercially impractical. See MatSu/Blackard/Stephan & Sons v. State, 647 P.2d 1101, 1105 (Alaska 1982). Estop-pel may be invoked as a defense against the government where four elements are present: (1) the governmental body asserts a position by conduct or words; (2) the person acts in reasonable reliance thereon; (3) the person suffers resulting prejudice; and (4) the estoppel serves the interest of justice so as to limit public injury. Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). Waiver, generally defined as "an intentional relinquishment of a known right," is a flexible term which takes on meaning in the context of specific cases. Milne v. Anderson, 576 P.2d 109, 111 (Alaska 1978). The material facts appear to be the following: In June 1986 the ARLF re-approved the Wassinks' cow loan. In July 1986 the Wassinks submitted permit applications (apparently for the Grade A facility classification) to the State's Department of Environmental Conservation (DEC). In August 1986 Heim sent the letter purportedly altering the conditions of the stipulation. On or about the second week of October 1986, the Wassinks were notified that the loan check was in. When the Wassinks went to pick up the check, they were told by the Division of Agriculture that the money would not be released until the barn was completed and a Grade A dairy permit obtained. According to the Wassinks a Grade A permit cannot be obtained until there are milking cows on the premises since the milk product must be tested as part of the permitting process. These two conditions, if enforced, would place the Wassinks in a "Catch-22" situation. According to the Wassinks, historically the state has granted cow loans without the prerequisite of an interim permit from DEC. These alleged facts, supported by evidence in the record, were sufficient to raise genuine issues of material fact regarding waiver, frustration, and estoppel to defeat the state's motion for summary judgment. IV. CONCLUSION For these reasons, the decision of the trial court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

10396353

KOEHRING MANUFACTURING COMPANY, Appellant and Cross-Appellee, v. EARTHMOVERS OF FAIRBANKS, INC., Appellee and Cross-Appellant

Koehring Manufacturing Co. v. Earthmovers of Fairbanks, Inc.

1988-10-21

Nos. S-1910, S-1921 and S-1946

499

511

763 P.2d 499

763

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

KOEHRING MANUFACTURING COMPANY, Appellant and Cross-Appellee, v. EARTHMOVERS OF FAIRBANKS, INC., Appellee and Cross-Appellant.

KOEHRING MANUFACTURING COMPANY, Appellant and Cross-Appellee, v. EARTHMOVERS OF FAIRBANKS, INC., Appellee and Cross-Appellant. Nos. S-1910, S-1921 and S-1946. Supreme Court of Alaska. Oct. 21, 1988. Rehearing Denied Nov. 16, 1988. David H. Thorsness and Matthew K. Peterson, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellant and cross-appellee. Lloyd I. Hoppner and Scott L. Taylor, Hoppner & Paskvan, P.C., Fairbanks, for appellee and cross-appellant. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

7048

44824

OPINION COMPTON, Justice. Koehring Manufacturing Company (Koehring) and Earthmovers of Fairbanks (Earthmovers) were found liable in strict product liability for injuries suffered by welders using a crane manufactured by Koehring and owned by Earthmovers. The injured workers, not party to this appeal, were employed by or doing contract work for the City of Nenana, which had leased the crane from Earthmovers. Thus Earthmovers was found strictly liable as lessor and Koehring strictly liable as manufacturer of a defectively designed product. The trial court held that Earthmovers was entitled to indemnification from Koehring. Koehring appeals this ruling. Earthm-overs cross appeals for additional attorney's fees and discovery sanctions against Koehring. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND. The crane involved in the accident was manufactured by Koehring in 1980. It was purchased by Earthmovers from Carde Pacific Corporation (Carde) as a used crane several years later. Earthmovers leased the crane to the City of Nenana (Nenana) for use on a dock construction project. Nenana used the crane in part as a platform to lift and hold welders in position for work on the top of a piling. While lifting the welders in a manbasket suspended from the crane boom, the block holding the manbasket came into contact with the end of the crane and the cable suspending the basket broke. The welders fell approximately 20 feet to the ground and were injured. The action of raising the block to come in contact with the end of the crane boom is called "two-blocking." Devices that prevent or warn a crane operator of impending contact are called "anti-two-blocking devices." The asserted design defect in this crane was the absence of such a device. The injured welders sued Nenana for negligence. They then amended their complaint by joining Earthmovers as a defendant, alleging negligence and strict product liability theories of recovery against it. Earthmovers filed a third-party complaint for indemnity against Koehring and Richie Bros. Auctioneers, Inc., (Richie Bros.) on strict product liability and breach of warranty theories. Koehring filed an answer generally denying Earthmovers' allegations, and affirmatively alleging that "[t]he cause of the accident described in plaintiff's [the injured welder] complaint and third-party plaintiffs [Earthmovers] complaint, was the negligence of the plaintiff and/or the operator of the crane at the time of the accident," that plaintiff was comparatively at fault and that plaintiff was negligent per se. Richie Bros, answered similarly, claimed common law indemnity from Koehring and contractual indemnity from Earthmovers, and asserted the comparative negligence of Earthmovers to reduce any award. The injured welders next filed a second amended complaint joining Koehring as a defendant, alleging negligence and strict product liability theories of recovery. Koehring filed an answer generally denying the allegations and alleging 20 affirmative defenses, none of which was directed at the conduct of Earthmovers. Earthmovers then filed an amended third-party complaint adding a new party, Carde. Koehring did not file any answer to this pleading. Richie Bros, was dismissed by stipulation. Carde was dismissed on motion opposed by Earthmovers. The injured welders eventually abandoned all negligence theories of liability and proceeded to trial against Earthmovers and Koehring solely on the strict product liability theory of defective product design. Koehring moved for partial summary judgment dismissing the indemnity claims brought by Earthmovers. Koehring argued that joint tortfeasors, even in strict product liability, are not entitled to indemnity without a contractual obligation. Koehring also argued that Earthmovers could be held strictly liable to the plaintiffs based upon its own conduct, irrespective of the conduct of Koehring. Koehring asserted, and Earthmovers did not deny, that Earthmovers is a commercial lessor of heavy construction equipment. Further, Earthmovers inspected the crane after purchasing it from Carde, and thus knew it did not have an anti-two-blocking device. Earthmovers did not install such a device, although it could have, nor did it intend to do so because it did not believe such was necessary. It never contacted Koehring about anti-two-blocking devices, even though one of its own employees had been injured in a two-blocking incident. After this latest accident, it installed the devices. On the basis of these assertions, Koehring claimed that Earthmovers would be strictly liable to plaintiffs, and hence a "concurrently negligent tortfeasor" whose liability should not be passed on to Koehr-ing. Koehring makes no assertion that Earthmovers knew that the crane was defectively designed. It was following the filing of Koehring's Motion for Partial Summary Judgment that plaintiffs withdrew their negligence and failure to warn claims against both defendants and elected to proceed on only a strict product liability theory. Earthmovers opposed Koehring's motion and cross-moved for summary judgment, noting that Koehring had never asserted by way of cross-claim or counterclaim against Earthmovers any negligence on the part of Earthmovers. It argued that Koehring misunderstood the law of pass-through indemnity, the manufacturer being the last person in the chain who could be looked to by a lessor, seller or other person in the distribution chain. There being no evidence of any alteration by Earthmovers, Koehring was liable in indemnity to Earthmovers, should the crane be found to have been defectively designed. Earthm-overs requested that its right to indemnity be established. In response, Koehring asserted that Earthmovers was strictly liable because a lessor has a duty to inspect and make safe products it leases out, and not to lease out a dangerous product. Specifically Koehr-ing addressed this issue as follows: It would violate the spirit and underlying principles of Alaska product liability law and indemnity law to permit Earthm-overs to sidestep and avoid all legal responsibility if the product it rented out proves to be defective. (Emphasis added). It claimed that "This case simply does not concern an intermediary who is totally innocent in passing a product on to the consumer without knowledge of the alleged defect." The trial court ruled that Koehring had not properly raised an affirmative defense. "Given the failure of pleading," it granted indemnity to Earthmovers. In its motion for a new trial, Koehring argued that Earthmovers' conduct had been placed in issue in Koehring's motion for summary judgment, and that Koehring should therefore be allowed to amend its pleadings accordingly. The trial court denied the motion to amend and the motion for a new trial. Koehring challenges these rulings. The trial court's rulings on discovery and attorney's fees are also challenged. Earthmovers contends that the court inadequately sanctioned Koehring for what Earthmovers claims were discovery abuses. Earthmovers sought documents from Koehring relating to previous two-blocking accidents or accidents involving the same model crane as the crane involved in the accident. Koehring objected to the request. Earthmovers' motion to compel was granted with limitations, but Earthmovers claims Koehring failed to satisfy this order. This discovery cycle was repeated four months later. Koehring again failed to produce the requested documents. Earthmovers then sought sanctions against Koehring. The trial court awarded costs and fees as sanctions. Earthmovers does not believe costs and fees are adequate sanctions for "the litany of transgressions on the part of Koehring." It argues that the trial court should have imposed "litigation ending sanctions." With regard to attorney's fees, the trial court ordered that, in conjunction with Koehring's indemnification of Earthm-overs, Koehring must pay Earthmovers' attorney's fees incurred after April 4, 1986. This was the day plaintiffs abandoned their negligence claims and failure to warn. Earthmovers claims Koehring should pay all its attorney's fees. II. KOEHRING IS REQUIRED TO INDEMNIFY EARTHMOVERS FOR DAMAGES AWARDED AGAINST EARTHMOVERS UNDER STRICT PRODUCTS LIABILITY. Whether Koehring was obligated to indemnify Earthmovers for the strict product liability judgment against it is a question of law. Therefore we may review the issue de novo. Jackson v. White, 556 P.2d 530, 533 n. 8 (Alaska 1976). We were faced with a question of a manufacturer's indemnification of a distributor's attorney's fees for successfully defending a strict product liability suit in Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059 (Alaska 1979). We held there that the manufacturer was required to indemnify the distributor for its attorney's fees. That case was limited to the issue of attorney's fees. We did not discuss indemnification for a damage award, because the distributor had prevailed. However, a general right to indemnification would seem to be axiomatic to a right to indemnification for attorney's fees. We later discussed indemnity between two negligent tortfeasors in Vertecs Corp. v. Reichhold Chemicals, Inc., 661 P.2d 619 (Alaska 1983). In Vertecs we held that in Alaska there is no non-contractual implied indemnity between two negligent tort-feasors. We based this holding on a number of considerations. First, we concluded that the indemnity doctrine was founded on principles of justice and fairness. Second, we weighed the advantages of indemnity between two negligent tortfeasors (fairness, the loss falling on the most culpable party, and spreading losses) against the disadvantages (vagueness of judicial standards, discouraging settlement, and judicial inefficiency derived from the difficult standards). Third, we took notice of Alaska's adoption of the Uniform Contribution Act, AS 09.16.010-060. The presence of the Uniform Contribution Act, and thus the existence of a legislative scheme for distributing judgment costs fairly among negligent tortfeasors, was an important factor influencing us to decide against implied indemnity. In Ross Laboratories v. Theis, 725 P.2d 1076 (Alaska 1986), we compared the indemnity doctrines articulated in Vertecs and Heritage: The general rule is that a retailer who is liable on a theory of strict liability may obtain indemnity from the manufacturer, provided the retailer was not negligent. On the other hand, if the retailer and manufacturer are concurrently negligent, no claim for indemnity will lie. Id. at 1081 (citations omitted). These rules are consistent with their respective legal theories. On the one hand, negligence is based on fault. Thus, no indemnity will lie between two negligent tortfeasors; they each must pay their own portion of the plaintiff's damages according to the contribution statute. On the other hand, strict liability is not based on fault. This court has written: "The concept of risk allocation has been the primary policy rationale convincing courts to adopt strict products liability." Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 877 (Alaska 1979) (footnote omitted). Other considerations include the greater efficiency achieved by eliminating plaintiff's need to prove fault and the incentive for manufacturers to provide safer products. Id. Thus, once the balancing of fault has been removed as a policy consideration and risk and cost allocation have been substituted for it, any apparent dichotomy in the indemnity doctrine is explained. It is the manufacturer who can best bear the cost of defective products and distribute that cost most equitably throughout society. The manufacturer indemnifies not because of its culpability, but because of its position at the head of the product distribution chain. In addition, we can perceive no difference between a retailer and a lessor for these purposes. Koehring argues, based on Vertecs, that Earthmovers is not entitled to indemnity. But neither Koehring nor Earthmovers was found negligent. Thus Vertecs, which applies to two negligent tortfeasors, is inapplicable. The rule assumed in Heritage and discussed in Ross governs this case: a retailer or lessor found liable on a strict product liability theory may obtain indemnity from the manufacturer, provided the retailer or lessor was not independently negligent. III. KOEHRING FAILED TO RAISE ANY ISSUE OF EARTHMOVERS' INDEPENDENT NEGLIGENCE. Koehring complains that in ruling on its motion for a new trial, the trial court erred in not allowing it to amend its pleadings to state a defense of "assumption of risk" on the part of Earthmovers. We have repeatedly held: "The grant or denial of a motion for a new trial is a matter of discretion with the trial court and will not be interfered with 'except in the most exceptional circumstances and to prevent a miscarriage of justice.' " Exxon Corp. v. Alvey, 690 P.2d 733, 741 (Alaska 1984) (quoting International Bhd. of Teamsters, Local 959 v. King, 572 P.2d 1168, 1178 (Alaska 1977) (quoting National Bank of Alaska v. McHugh, 416 P.2d 239, 244 (Alaska 1966))). We have also held that a trial court has broad discretion in allowing or denying proposed amendments to pleadings. Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050, 1054 (Alaska 1986). To avoid its indemnity obligation it would have been necessary for Koehring to prove Earthmovers' independent negligence. Koehring would then have fallen into the Ross exception to indemnity: "a retailer . may obtain indemnity from the manufacturer, provided that the retailer was not negligent." Ross Laboratories, 725 P.2d at 1081. Because negligence is a complete bar to indemnification, it is an affirmative defense under Civil Rule 8(c) and must be affirmatively pled. Cf., Alaska R.Civ.P. 8(c); Rollins v. Linbold, 512 P.2d 937, 940 (Alaska 1973) ("An affirmative defense can generally be defined as a new matter not set forth in the complaint which constitutes a defense; or a new matter which, assuming the complaint to be true, is a defense to it.") However, Koehring did not plead Earthmovers' independent negligence. We observe first that Koehring did not plead any negligence on the part of Earthmovers in response to Earthmovers' third-party complaint against it. It never filed an answer to Earthmovers' amended third party complaint. In its briefing, Koehring makes statements which seem at first to suggest that Koehring has put Earthmovers conduct into contention, but which then address only a strict product liability theory of recovery. For example, in its Memorandum in Support of Motion for Partial Summary Judgment, Koehring pleads: In the present case, if the jury finds that Earthmovers' acts caused plaintiff's injuries, regardless of whether the underlying theory of liability is negligence or strict liability, Earthmovers should not be entitled to recover indemnity from Koehring. It would be unjust to hold that a party that causes injury may be completely relieved of liability through implied indemnity simply because plaintiffs cause of action was for strict liability, rather than negligence. This statement is a legal non-sequitor; if negligence is not an issue, then Earthm-overs' conduct will not be presented to the jury. The only "acts" which are considered in a strict liability action are the "acts" of placing the defective product into the stream of commerce. See Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244, 247 (Alaska 1969). Koehring clarified its position when, subsequent to the injured welders dropping their negligence claim, Koehring wrote in its Reply to Earthmovers' Memorandum Opposing Koehring's Motion for Partial Summary Judgment and Opposition to Earthmovers' Cross-Motion for Summary Judgment: In its Opposition, Earthmovers attempts to mischaracterize the theory of liability supporting Koehring's Motion for Summary Judgment. Koehring filed its Motion for Summary Judgment before it received notice that plaintiffs were dropping their negligence claims against Earthmovers and Koehring. As a result, there is some discussion in Koehring's Motion for Summary Judgment relating to Earthmovers' alleged negligence. However, the clear thrust of Koehring's argument in that motion is that Earthmovers is precluded from asserting a claim for indemnity against Koehring, regardless of plaintiffs' theory of liability, including strict liability. Under Alaska law, Earthmovers would be subject to strict liability for its own independent activity in leasing out a crane which proves to be defective if the defective condition proximately caused plaintiffs' injuries. Bachner v. Pearson, 498 [479] P.2d 319 (Alaska 1970). A significant portion of Earthmovers' Opposition is devoted to challenging the negligence issue raised in Koehring's Motion for Summary Judgment. Because Earthmovers' discussion on that point has been rendered moot by plaintiffs' decision to drop their negligence claims, and because Koehring's motion for Summary Judgment is based primarily on Earthmovers' potential strict liability as a commercial lessor, that discussion does not merit a response from Koehring. (Emphasis added). Calling the negligence issue "moot" and writing that it "does not merit a response from Koehring" would seem to be dispositive. However, an ambiguity developed at oral argument on these motions. The following colloquy took place: The Court: No, I'm relying on a general indemnity provision. Basically Earth Movers is — has claimed — had pled indemnity. A corollary of indemnity under several lines of authority is that — that the — whatever the intermediary, whether it be retailer or lessor, is entitled to indemnity except to the extent that it has assumed the risk. I don't believe that that's a matter that needs to be put.... [Earthmovers' Counsel]: Well, I'd just re — the Court then because what the Court is — is injecting into this case then is the question of conduct of Earth Movers, and.... The Court: It had been my understanding from based on the summary judgment motions that that had already been injected into this case. (Earthmovers' Counsel]: It'd only been injected by the plaintiffs. That's why when the plaintiffs dismissed the negligence claim, Koehring came back and said that that's not a matter that needs to be discussed any more because of the absence of negligence claims. There has never been any claim asserted against Earth Movers by Koehring based upon conduct or based upon comparative negligence. That's a matter of — of affirmative pleading if it even were the stated cause of action, but the Court's — if the Court is saying that that is something that can be set up, I don't think it can be set up in this trial. I think that they have not pled that. We're talking about feally complicating this case at this moment if we bring Earth Movers' conduct into question. The Court: Mr. Peterson or Mr. Thorsness [Koehring's Counsel]? Unidentified Voice: I guess I'm a little bit confused, too, as to exactly how we'll handle this as a matter of proof. I — I think we are in basic agreement that— between us and Earth Movers that the question is really a matter of law. Is a lessor entitled to indemnity to the same extent as a retailer might be or is a lessor in a separate category which as a matter of law cannot pass back to the manufacturer in a strict liability case. This matter of assumption of the risk or assumption of the defect, maybe I can articulate the way I would assume that that would be handled. In other words, Koehring would have to prove then that Earth Movers knew more about the dangers, knew more about the product, or knew more about anti-two-blocking devices than the typical theoretical lessor. Is — is that what is meant by the Court when you're talking about Earth Movers' assumption of the risk? In other words, that they knew what the risk was and then assumed the risk, stepping into the shoes or closer to the shoes of the manufacturer. The Court: What the line of cases that talks about assumption of risks, talks about it — is virtually identical to what our Supreme Court talks about in terms of comparative fault in the Code (ph) One (ph). That's what I'm talking about. Does that clarify what you're.... The Court: What's your position as to whether or not you needed to plead that? Unidentified Voice: Well, I think it would be pled as a matter of á general denial on the indemnity claim. I'll have to take a look specifically at our pleading on that issue 'cause I do think that we have raised general defenses of su-perceding and intervening cause, comparative negligence or negligence of other parties, and I think within the context of the strict liability and indemnity issues that that may well be preserved by those pleadings if we're talking.... The Court: Take a look at it now. Unidentified Voice: All right. The Court: I don't find an answer to the third-party complaint in my file. Unidentified Voice: There is an answer, but there are no affirmative pleadings. The Court: . Okay. The affirmative defenses pled are that negligence of the plaintiff and/or operator of the crane— and the operator was a city employee, correct? Unidentified Voice: Yes. The Court: That plaintiff was guilty of comparative fault and that plaintiff was using the crane in violation of law and regulations, negligent per se. Given the failure of pleading, I'll grant Earth Movers' summary judgment motion on the issue of liability pass through (ph) idemnity.... Unidentified Voice: Yeah, if I could just comment briefly for the record. I — I do feel that — and I will double check specifically on our pleading and provide the Court with a copy of that later today, but to the extent that the ruling really revolves around the issue of Earth Movers' assumption of the risk affecting their ability to seek indemnity, I think the affirmative defenses and the denial we have made are sufficient and — and that a specific pleading would not be necessary on that. The ambiguity that developed in Koehr-ing's oral colloquy with the court is not present in its pleadings. Given Koehring's pleadings and memoranda, the trial court could reasonably conclude that Koehring never raised an issue of Earthmovers' independent negligence. Following this exchange in court and the court's ruling Koehring made no motion for the court to reconsider, nor apparently did it present more specific pleadings to the court "later today." It did not at that time move to amend its pleadings to cure any defect. Instead, in its motion for a new trial Koehring moved to amend its pleadings to "conform with the uncontradicted evidence" presented in its summary judgment papers, again asserting that Earthm-overs was liable under Bachner v. Pearson, 479 P.2d 319 (Alaska 1970). As Koehring points out, pleadings normally can be freely amended to conform to the evidence. Alaska R.Civ.P. 15(b). The restrictions of Rule 8(c) are the exception, not the norm. See 3 J. Moore, Moore's Federal Practice ¶ 15.13(2) at 15-125 (2d ed. 1985) ("The fact that a defense, even an affirmative defense, has not been formally pleaded is immaterial if the issue was tried by express or implied consent.") However, the trial court had bases for refusing to allow Koehring to amend its pleadings as requested in its motion for a new trial. First, the injured plaintiffs had clearly pled that Earthmovers was negligent, but elect ed not to proceed on that claim prior to trial. At that point Koehring could have advised the court and parties that it would present a negligence claim itself, if that was its intention, to defend against Earthmovers' indemnity claim. Instead, it called its own argument on the issue of negligence "moot." Second, when questioned by the court, Koehring described the conflict between itself and Earthmovers as "a matter of law"; Koehring asserted that unlike a retailer, a commercial lessor is not entitled to indemnification from the manufacturer of a defectively designed product. Even though Koehring was incorrect, the trial court was entitled to rely on Koehr-ing's representation as to the issue presented. Third, after the court's ruling on indemnity, but before trial, Koehring did not seek to have that ruling reconsidered or to amend its pleadings. It was only after trial that Koehring sought to amend its pleadings. The amendment relied on arguments presented in the pleadings prior to trial, not evidence admitted during trial. Critically, Koehring never asserted in those arguments that Earthmovers leased a product knowing it to be defective. We agree with the trial court that Koehr-ing did not raise the issue of independent negligence of Earthmovers as an affirmative defense, in pleading or memoranda, if it ever so intended. For the reasons above stated, the trial court did not abuse its discretion in refusing to allow Koehring belatedly to amend its pleadings. Thus, it follows that the trial court did not abuse its discretion in denying the motion for a new trial. IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING ONLY COSTS AS SANCTIONS AGAINST KOEHR-ING FOR ITS DISCOVERY ABUSES. Earthmovers sought discovery of complaints and warranty claims relating to anti-two-blocking devices and reports of two-blocking accidents. Koehring initially responded by requesting limits on the age of the documents sought and more time to compile the documents. Koehring claimed it needed more time because its files were not arranged for convenient retrieval of the information requested. It is clear that after the court modified the order compelling discovery Koehring still failed to satisfy Earthmovers' requests. Earthmovers then sought and received a second order compelling discovery. This order was almost identical to the first. Koehring still failed to produce all the documents requested by Earthmovers. In response to Koehring's delays, Earthmovers argued that it was prejudiced by Koehring's tactics because it could not conclusively show that only a limited number of two-blocking accidents had occurred. The court offered a continuance which the parties rejected. The court then ordered costs as sanctions saying: "in making the punishment fit the crime, I do not feel that Koehring's sins justify litigation ending sanctions." To impose sanctions under Alaska R.Civ. P. 37, the trial court must find a willful violation of a court order. Hawes Firearms Co. v. Edwards, 634 P.2d 377, 378 (Alaska 1981). Koehring's repeated failure to provide the requested documents, even after the trial court modified its order to compel, justifies the trial court finding Koehring's actions willful. But we have established no specific standard requiring trial courts to elevate the sanction from costs to issue preclusion. We have only stated minimum criteria that must be met when a court imposes issue preclusion. See e.g., Hazen v. Municipality of Anchorage, 718 P.2d 456, 460-61 (Alaska 1986) (issue established or claims dismissed must be relevant to the information requested); Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 147 (Alaska 1971) (establishment-preclusion order should be employed only upon the clearest showing that such a course is required); Bachner v. Pearson, 432 P.2d 525, 528 (Alaska 1967) (issue preclusion appropriate where party was recalcitrant and did not in good faith attempt to comply with discovery order). Given these standards, and the trial court's extensive consideration of the issue evidenced in the record, we do not conclude that the trial court abused its discretion in not imposing upon Koehring the most extreme sanctions available to it. V. THE TRIAL COURT DID NOT ERR BY AWARDING ATTORNEY'S FEES ONLY FROM THE DATE EARTHMOVERS NO LONGER DEFENDED A NEGLIGENCE ACTION. It is well established that in civil cases, an award of attorney's fees to the prevailing party lies within the sound discretion of the trial court under Alaska R.Civ.P. 82. Chugach Electric Assoc'n v. Northern Corp., 562 P.2d 1053, 1063 (Alaska 1977); Haskins v. Sheldon, 558 P.2d 487, 495 (Alaska 1976). The case at hand presents a unique circumstance, however, because Earthmovers is entitled to attorney's fees because of its right to indemnity. The review of the award of attorney's fees based on indemnity is a question of law which we may review de novo. See Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1065-67. Koehring's obligation to indemnify Earthmovers includes attorney's fees. Heritage, 604 P.2d at 1066-67; see also Part II. A., supra. In the instant case the plaintiffs originally sought relief against Earthmovers on both negligence and strict products liability theories. A finding of negligence would have barred indemnity. A finding of no negligence on Earthm-overs' part would have resulted in indemnity. Plaintiffs, however, elected to withdraw their negligence claims and proceeded to trial only on the issue of strict products liability. It is appropriate to place the cost of defending the negligence action on Earthmovers, as the trial court has done, because had the case proceeded only on negligence, Koehring might have incurred no obligation to indemnify. Therefore, by setting April 4, the date plaintiffs abandoned their negligence claims, as the date after which Earthmovers no longer defended a negligence claim, the trial court adopted a reasonable means of apportioning costs consistent with Koehring's obligation to indemnify. VI. CONCLUSION. For the reasons discussed above, the decision of the trial court is AFFIRMED. . Due to the issues raised by Koehring, this section sets forth more detail than is usually required. . The accident is not at issue in this appeal. . The Fifth and Eighth Affirmative Defenses allege the superceding and intervening negligence of "other persons or parties." The parties against which these defenses are directed are Nenana and the operator of the crane. . Specifically Koehring argued that since Earthmovers and Koehring could be held jointly and severally liable, the former for leasing a defective product that the latter manufactured, under the rule of Vertecs Corp. v. Reichhold Chemicals, Inc., 661 P.2d 619 (Alaska 1983), both were "joint tortfeasors." As a joint tort-feasor, Earthmovers would be barred from obtaining indemnity from Koehring. Koehring misreads Verteos. The claims Vertecs was defending were all fault based. . Koehring's problem is obvious: its principal defense to plaintiffs' claim, strenuously argued from the outset, was that the crane was not defectively designed. . Professor Prosser lists three justifications for strict product liability: the costs can best be borne and distributed throughout society by the manufacturer; manufacturers will be encouraged to develop safer products; and, manufacturers' fault is often present but difficult to prove. W. Keeton, D. Dobbs, R. Keeton and D. Owen, Prosser and Keeton on the Law of Torts 692-93 (5th ed. 1984). . Koehring agrees that indemnity would attach if Earthmovers was an innocent party but argues that Earthmovers cannot be innocent because it was found strictly liable. Koehring quotes from Allison Steel Mfg. Co. v. Superior Court, 20 Ariz.App. 185, 511 P.2d 198 (1973) to support its argument that a finding of liability against Earthmovers under a strict liability theory implies fault on the part of Earthmovers. This quote is taken out of context. In fact, the case holding goes against Koehring because the quoted text is the court's attempt to justify its holding a manufacturer liable for all damages awarded in a product liability action. The text preceding the language quoted by Koehring is: It is true that the doctrine of strict or products liability imposes liability upon all of those in the chain of placing a product in the stream of commerce, from the retailer, to the wholesaler, to the manufacturer of the product. It is also true that the retailer of the product, absent active participation in the creation of the defects causing the injury, may seek indemnity from the manufacturer whose process created the defect.... We have found no case which would allow the manufacturer of a "defective product", as that term is used in products liability cases, to collect indemnity from a third party whose negligence may also have contributed to the consumer's injuries. Id., 511 P.2d at 202-03 (citations omitted; emphasis added). . It is unclear just what "risk" Earthmovers arguably assumed, but apparently it is the risk of leasing a product later determined to be defective. . In Bachner v. Pearson, 479 P.2d 319 (Alaska 1970), this court extended application of strict product liability to commercial leases. 479 P.2d at 327-328. We also addressed whether contributory negligence by the user constituted a defense to a strict product liability claim, concluding that "contributory negligence, as a defense to strict liability in tort, should be limited to those cases where the plaintiff voluntarily and unreasonably encounters a known risk." Id. at 330. We upheld the trial court's action in striking a contributory negligence defense at the close of the defendant's case, since "there is absolutely nothing in the record from which a jury could conclude that Pearson actually knew of the defective condition of the muffler, yet proceeded to fly the plane.... Defendant's only recourse in attempting to establish plaintiffs contributory negligence as a defense to strict liability would have been to prove that Pearson knew of the defect in the exhaust system." Id. . We interpret the phonetic "Code (ph) One (ph)." to refer to Butaud v. Suburban Marine & Sporting Goods, Inc., 543 P.2d 209 (Alaska 1975), commonly referred to as Butaud I. In Butaud I we elaborated on the contributory negligence defense to a strict product liability claim articulated in Bachner, 479 P.2d at 328 (user must be actually aware of the product's defect and voluntarily and unreasonably encounter that known risk), and refined the proof required to establish a strict product liability claim. In Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976), (Butaud II), we harmonized the doctrine of comparative negligence with strict product liability, and extended defense against strict liability to include a user's misuse of the product which proximately causes the injury. Bachner, Butaud I and Butaud II were followed by Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979), which further defined the law of strict product liability. In defense of the action, Caterpillar asserted that "Beck perceived (or should have perceived) the danger of operating the loader without a ROPS and was himself negligent in failing to install a ROPS." Id. at 890. We rejected this defense: We do not believe that a consumer who uses a product as it was intended to be used, and who knows or should know of the lack of a safety device, can be deemed to have misused the product within the meaning of Butaud II. If the jury finds that a product is defective by virtue of its lack of a safety feature, plaintiffs failure to install such a device will not reduce his recovery based upon his mere knowledge of the inadequate safety features on the product. This is not to say that a manufacturer of such a product has no defense. Rather, as was instructed here, the standard of Butaud I would apply. Id. at 890-891. We concluded that "comparative negligence cannot be used when the plaintiffs negligence was nothing more than knowledge of the defect./63" Id. at 892. Note 63 reads: This is especially true where there is a large used equipment market. The buyer in that market is even less likely to have the data on the dangers of operating without ROPS and the means to forestall such danger. Id. . Prior to this ruling, Koehring had submitted three proposed instructions directed to Earthm-overs' liability. The first asserted that the jury could not award indemnity to Earthmovers "if you find Earthmovers was a commercial lessor and that the product was defective." The second claimed that Koehring "has raised the affirmative defense that Earthmovers . was negligent in renting the . crane to . Nenana without taking measures to insure that the crane would not be used to lift personnel." It then directed the jury how to proceed to determine whether design was a proximate cause in light of such negligence. Lastly, the court instructed the jury that a commercial lessor could be held strictly liable if it rented a defectively designed product, and that defect caused the plaintiffs injuries. The first proposed instruction is an incorrect statement of the law. The second is directed to an issue not raised in any of Koehring's pleadings or memoranda. The last is a correct statement of Bachner, but not disputed by Earthm-overs. . The context in which the motion for a new trial was determined is relevant to our review of the trial court's decision. At that point, Koehr-ing had not settled with the original plaintiffs, and hence was asking the trial court to order a new trial on all issues as to all parties: "The granting of indemnity was clearly in error. Accordingly, to the extent that the granting of indemnity affected the position of the parties at trial and skewed the evidence presented at trial, a new trial on all issues must be granted." . The standard of review for discovery sanctions is abuse of discretion. See Hazen v. Municipality of Anchorage, 718 P.2d at 460.

10313403

Joanne GARDNER, Appellant and Cross-Appellee, v. Lee Wayne HARRIS, Appellee and Cross-Appellant

Gardner v. Harris

1996-09-20

Nos. S-6648, S-6677

96

101

923 P.2d 96

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Joanne GARDNER, Appellant and Cross-Appellee, v. Lee Wayne HARRIS, Appellee and Cross-Appellant.

Joanne GARDNER, Appellant and Cross-Appellee, v. Lee Wayne HARRIS, Appellee and Cross-Appellant. Nos. S-6648, S-6677. Supreme Court of Alaska. Sept. 20, 1996. Maryann E. Foley, Anchorage, for Appellant and Cross-Appellee. William B. Carey, Anchorage, for Appellee and Cross-Appellant. Before RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ., and CARPENETI, J. Pro Tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2850

17956

OPINION CARPENETI, Justice Pro Tem. I. INTRODUCTION This is an appeal from the superior court's property division in a divorce case. Joanne Gardner challenges the trial court's finding that bonds purchased by Lee Harris prior to their marriage faded to transmute into marital property for purposes of equitable distribution. Harris cross-appeals the trial court's refusal to require Gardner to repay her portion of loans collateralized by the bonds which were paid off when the bonds were called. Gardner also challenges the trial court's amended finding that she owes Harris an additional $21,500.74 for her share of post-separation expenses. We affirm the trial court's determination as to the bonds and remand the order to pay post-separation expenses for additional findings. II. FACTS AND PROCEEDINGS The facts are largely undisputed. Joanne Gardner and Lee Harris married in September 1985 and separated in December 1992. During the marriage, both worked in the oil and gas exploration industry and each earned approximately $80,000 per year. Shortly before the marriage, Harris invested $63,000 in Valdez Marine Terminal (VMT) bonds, to be worth $90,000 at maturity. Harris held these bonds in a separate account at Merrill Lynch until the summer of 1987, when he transferred them into the couple's joint Merrill Lynch "Cash Management Account." Harris and Gardner held the Cash Management Account as joint tenants with a right of survivorship. The couple's Merrill Lynch stockbroker, Kenneth Jones, testified at trial that both Harris and Gardner possessed independent authority over this account, including individual discretion over whether to trade or cash in the VMT bonds. Concurrent with the transfer of the bonds, the Cash Management Account became the couple's primary joint financial account. Harris and Gardner made credit card transactions and wrote checks against the account; they each contributed their paychecks to the account; and they applied the bond's interest income, which was rolled into the joint account at approximately $5,500 per year, toward joint expenses. Harris and Gardner also used the bonds to refinance real estate that the couple owned in Monterey, California, and a sailboat, both of which the trial court later found to be marital assets. In December 1993 and immediately before the February 1994 divorce trial, the VMT bonds were called. When the bonds were called, all loans collateralized by the bonds were paid off. The remaining cash balance in the couple's Cash Management Account totalled $29,120. After considering the evidence, the trial court found that the couple's marital assets should be divided equally. The court set aside the balance of the parties' joint Cash Management Account, finding that it was the separate property of Hands. The court found that although the VMT bonds had been placed into the joint account and had been jointly borrowed against, and that the interest income from the bonds had been exhausted for marital expenses, neither party had cashed the bonds in, traded them, or added additional bonds to the corpus: "The corpus remained intact throughout the marriage, and matured as it would have even if the parties had never married; nor had ever placed them in a joint account." The court gave weight to Harris's testimony that "at no time did Ms. Gardner consider these bonds anything other than his." The court concluded that although the bonds had been called, Harris would retain "the money left from the bonds" as his separate property. The trial court also addressed post-separation expenses, finding that Harris had spent $4,037.52 more than Gardner on joint post-separation expenses. The court therefore found that Gardner owed Harris fifty percent of this figure, or $2,019. Harris thereafter moved to amend the findings and judgment or, alternatively, to obtain a new trial. First, Harris explained that the court's findings pertaining to post-separation expenses were limited to expenditures made out of Harris's separate account. Harris documented additional expenses paid out of the joint Cash Management Account, and noted that Gardner's post-separation deposits into that account had been far less than those of Harris. The court accepted Harris's new figures and entered an amended finding that Gardner owed Harris an additional $21,500.74 for her share of personal and joint post-separation expenses paid out of the couple's joint account. The second argument which Harris pressed focused upon the VMT bonds. Harris urged that having found the bonds to be his separate property, the trial court should have additionally found Gardner responsible for her share of an approximately $40,000 "devaluation" of the bonds, that is, the amount which was repaid to Merrill Lynch out of the bond proceeds to repay loans the couple had taken out to refinance the Monte-rey property and the boat. The trial court disagreed. In commenting on the status of the bonds, the court noted: Having found Mr. Harris' [VMT bonds] to have been his separate property, the court has already or by amendment if not clear to the parties, [found] the earnings marital property of the parties. Mr. Harris shall retain the bonds, but the earnings are deemed "marital property," and thus were spent on marital expenses during marriage. The bonds themselves were used simply to collateralize the parties' joint loans, and both were equally responsible for the repayment of such loans against the principal of the bonds, Mr. Harris' separate property. The court specifically deleted language in Harris's proposed order which would have required Gardner to pay Harris $20,000 to partially restore the full worth of his premarital asset. This appeal and cross-appeal followed. III. DISCUSSION Property division at divorce involves a three-step process. "'First, the trial court must determine what specific property is available for distribution. Second, the court must find the value of this property. Third, it must decide how an allocation can be made most equitably.' " Chotiner v. Chotiner, 829 P.2d 829, 831 (Alaska 1992) (quoting Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983)). When reviewing a decision under the first step, this court applies the abuse of discretion standard; however, if a legal determination is involved, we exercise our independent judgment. Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990); Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). We will not disturb a trial court's valuation of the parties' assets under step two in the absence of clear error. Lewis, 785 P.2d at 552. Finally, a trial court's allocation of property under step three is subject to abuse of discretion review. Id. A. The VMT Bonds On appeal Gardner challenges the trial court's resolution of the first task: the isolation of marital versus non-marital prop erty for the purpose of equitable distribution. Gardner contends that the trial court erred in setting aside the VMT bonds as Harris's separate property. Gardner asserts that a series of acts clearly evidenced Harris's intent to donate the VMT bonds to the marriage. Gardner emphasizes Harris's decision to transfer the bonds into the couple's primary joint account where each party possessed full authority over their use. Gardner urges this court to recognize the marital nature of the account, which not only held the bonds but was used by both parties as a depository for paychecks and as a source of funds for joint expenditures. Finally, Gardner notes that Harris testified that he transferred the bonds into the joint account for "the community benefit," and that the parties in fact used the bonds to, among other things, refinance marital property. Harris acknowledges that the bonds were put to joint use; however, Harris contends that when he transferred the bonds into the joint account, he intended to keep the asset separate but to give the marriage the benefit of better financing which strategic use of the bonds would allow. Harris explains that the transfer of the VMT bonds into the joint account was an administrative convenience, and that Gardner understood that they remained his separate property. Harris cites his testimony that it was a "sore spot" during the marriage that Harris refused to cash in the VMT bonds, and he refers to testimony in which the couple's stockbroker observed that it was Harris, not Gardner, who appeared to be "in control" of the bonds. Under AS 25.24.160, only property acquired during the marriage, whether jointly or separately held, may be distributed by the trial court at divorce. AS 25.24.160(a)(4). However, it is a well-settled principle that property acquired before marriage "can become marital property where that is the intent of the owner and there is an act or acts which demonstrate that intent." Chotiner, 829 P.2d at 832; see also Rhodes v. Rhodes, 867 P.2d 802, 804 (Alaska 1994); Wanberg, 664 P.2d at 571. The present case requires the court to consider whether the bonds themselves have transmuted in character because the original owner has chosen to treat the property as a joint holding. In previous cases we have identified several factors that can assist the trial court in determining whether a spouse intended to treat his or her separate property as marital. One significant indication is evidence that both spouses have actively participated in the ongoing maintenance and management of the property. Rhodes, 867 P.2d at 804 & n. 5 (noting that although this factor has traditionally been applied to cases involving real property, "it might also be relevant to personal property"). In the ease of real estate, this court has looked to whether the couple used the property as a marital residence and whether the credit of the non-titled owner was used to improve the property. Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994). In addition, evidence of an oral or written agreement to convert pre-marital property to, or keep it separate from, marital property is probative. Chotiner, 829 P.2d at 833. Finally, although we have stated that "the act of commingling, in itself, does not automatically establish intent to jointly hold property," Carlson v. Carlson, 722 P.2d 222, 224 (Alaska 1986), we have held that "placing separate property in joint ownership is re-buttable evidence that the owner intended the property to be marital." Chotiner, 829 P.2d at 833; Lewis, 785 P.2d at 555. After considering the arguments and record, we conclude that the trial court gave sufficient weight to these factors. Given the deferential standard of review that we apply to the trial court's decision, we cannot say that the decision that the VMT bonds remained Harris's separate, pre-marital asset was an abuse of discretion. Harris transferred his bonds into an account which he held with Gardner for the purpose of using them to obtain credit. Once the bonds were placed into the account, Harris ran the risk that the bonds would be called and the credit used. Until the credit was used the bonds remained Harris's separate property. When the bonds were called, however, the portion that was used for credit was lost, and the remaining proceeds remained Harris's separate property. B. Post-Separation Expenses Gardner also challenges the trial court's amended finding that she must pay Harris an additional $21,500.74 for her share of personal and joint post-separation expenses. The trial court originally found that Harris had overspent Gardner by $4,037.52 on joint post-separation expenses. In a motion to amend the findings, Harris stated that the court's finding had been based only upon payments made out of Harris's separate account. Harris's request for an amendment was based on the additional post-separation expenses paid from the joint Cash Management Account, and the difference between their post-separation deposits into that account. The trial court granted the motion to amend and awarded Harris the amount requested, finding: The defendant paid a total of $11,054.65 of plaintiffs post-separation personal expenses and $14,925.53 of plaintiffs share of the parties' joint post-separation expenses. Plaintiff made post-separation deposits into the account from which the payments were made in the sum of $4,479.44 and should be given credit against the above amounts for these deposits. Plaintiff, Joanne Gardner therefore owes defendant, Lee Wayne Harris, the sum of $21,500.74 for her share of post-separation expenses paid for out of the parties' [Cash Management] [A]ccount. Gardner contends on appeal that the amount awarded was erroneous because it was based upon Harris's figures which contained inaccuracies and mathematical errors. Harris disagrees, arguing that the trial court was entitled to accept the figures that he presented. We cannot determine on this record the basis for the award of post-separation expenses. Accordingly, we must remand this issue to the trial court for entry of specific findings supporting the basis for the award of $21,500.74 to Harris. See Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) (this court requires "sufficiently detailed and explicit findings" for a clear understanding of the basis for trial court's decision), quoted in Chotiner, 829 P.2d at 833. IV. CONCLUSION The trial court did not abuse its discretion in concluding that the VMT bonds purchased by Harris prior to the marriage remained his separate property. We therefore AFFIRM the trial court's holding that the bonds remained Harris's separate property. On that basis, we deny Harris's cross-appeal. Finally, we REMAND Gardner's challenge regarding post-separation expenses for additional findings. MOORE, C.J., not participating. RABINOWITZ, J., with whom EASTAUGH, J., joins, dissents in part. . In concluding that the bonds were Harris's separate property, the court further observed that because Harris and Gardner enjoyed equal eaming capacities, there was no need to invade Harris's separate property in order to balance the parties' equities. . In concluding that the VMT bonds retained their character as Harris's separate property, the trial court identified what it viewed as the pivotal factor: the fact that "[t]he corpus [of the bonds] remained intact throughout the marriage, and matured as it would have even if the parties had never married; nor had ever placed them in a joint account" . Reference to the exhibits presented at trial does not reveal how the trial court reached its conclusions that Harris paid $11,054.65 of Gardner's post-separation personal expenses, $14,925.53 of Gardner's share of the parties' joint post-separation expenses, or that Gardner made post-separation deposits of $4,479.44 for which she should receive credit.

10397832

Rian M. DOLCHOK, Appellant, v. STATE of Alaska, Appellee

Dolchok v. State

1988-11-10

No. A-1794

977

982

763 P.2d 977

763

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Rian M. DOLCHOK, Appellant, v. STATE of Alaska, Appellee.

Rian M. DOLCHOK, Appellant, v. STATE of Alaska, Appellee. No. A-1794. Court of Appeals of Alaska. Nov. 10, 1988. Sen K. Tan, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2943

17612

OPINION SINGLETON, Judge. Rian M. Dolchok was convicted of sexual assault in the first degree following a jury trial. AS 11.41.410(a)(1). He appeals his conviction, arguing that the trial court erred in refusing to instruct the jury on the lesser-included offense of assault in the fourth degree. The victim, R.R., was the sixteen-year-old twin sister of Dolchok's girlfriend. On July 27, 1985, the two sisters, Dolchok, and another young man went to a birthday party. All four of them eventually returned to Dolchok's home later that evening. Dolchok procured blankets and pillows for R.R. and the other young man to sleep upstairs in the living room. R.R. prepared to sleep on the couch, while the other man prepared to sleep on the living room floor. Meanwhile, Dolchok and R.R.'s sister went downstairs to Dolchok's room to sleep. While R.R. and the other man were talking in the living room, R.R. heard a door slam, and realized that her sister had left. Apparently, Dolchok and R.R.'s sister had argued over Dolchok's sexual attraction to R.R. R.R. asked Dol-chok why her sister had left and why he did not go out to get her. At this point the version of the facts offered by the defendant and by the state differs significantly. R.R. testified to the following facts. After her sister left, Dolchok took the other man aside to talk to him; shortly thereafter the man left. R.R. talked to Dolchok for approximately half an hour about her sister, and then he asked her to come downstairs to watch a movie. R.R. declined, but Dolchok grabbed her by the wrist and tried to pull her downstairs. She agreed to view the movie with him. They sat on his bed and watched the movie for about twenty minutes when R.R. decided to go upstairs to sleep. He suggested that she sleep on his bed, and said that he would go upstairs and sleep on the couch when the movie was over. R.R. grabbed a blanket and went to sleep on the bed, on top of the sheets. R.R. woke up around 4:00 in the morning, with Dolchok's arms around her. He was nude. R.R. told Dolchok to let go of her, but he refused. Dolchok then draped his leg over both of R.R.'s legs. She told him to get off of her, and said that she was going to scream. They wrestled for about ten minutes. R.R. kept trying to scream, but Dolchok covered her mouth with his hand. He eventually removed her clothes. Dolchok then grabbed R.R. around her neck, partially choking her, and with her head hanging off the bed, Dolchok raped her. R.R. testified that she struggled and cried during the act of intercourse. After Dolchok completed the act, he stopped choking R.R. and released her. She got up and told him that he had just raped her. Dolchok responded that he would kill her if she told anyone. This version of the facts is consistent with the testimony of Anchorage Police Officer Laren Zager. Zager testified that early on the morning of July 28, Dolchok came to the Anchorage Police Station. Dolchok wanted to turn himself in because he believed he had committed statutory rape. Officer Zager asked Dolchok his age and the age of the victim. Dolchok responded that he was eighteen and that R.R. was sixteen. Officer Zager looked up the statutory elements of sexual abuse of a minor, and discovered that Dolchok had not committed statutory rape. He conveyed this to Dolchok, but Dolchok did not appear relieved. Instead, Dolchok said, "She didn't want to have sex with me." At this point, Zager realized that there may have been another crime committed, and he proceeded to question Dolchok further. The interview was not recorded, because Officer Zager did not have a tape recorder at his disposal. Dolchok told Officer Zager that he and his girlfriend had an argument because Dolchok was interested in having sex with her twin sister, R.R. Dolchok said his girlfriend "stormed out of the house," and then he talked R.R. into staying at his house with him to watch television. He told Zager that after R.R. fell asleep, he decided to have sex with her. Dolchok said that he had to hold R.R. down to have sex with her, and that she kept yelling, "no, no, no" before and during intercourse. Dol-chok told Zager that R.R. cried while he was having sex with her and that she was angry with him when he finally let her go. Dolchok's testimony at trial was substantially different from R.R.'s testimony and his confession to Officer Zager. According to Dolchok, both he and R.R. were under the covers in his bed watching the movie. They both fell asleep, and he woke up with his arm around her. R.R. then woke up, and they started kissing one another. They engaged in petting, oral sex, and genital intercourse. Dolchok claimed that at no time did R.R. indicate any resistance or displeasure with the sexual activity. Dol-chok testified that they removed each other's clothes, but that he used ho forceful action and did not rip off her clothes. He also testified that he did not use any type of force to penetrate R.R.'s vagina. Dolchok also testified that only after they finished having sex and R.R. got dressed did she accuse him of raping her. Dolchok stated that he was shocked, and that he asked R.R. not to tell her sister that he had slept with her. Dolchok then grew concerned that he may have committed statutory rape because of R.R.'s age. He testified that he went to the police station to turn himself in for statutory rape, but he denied confessing to forcible intercourse. After the court requested jury instructions, Dolchok asked that the jurors be instructed that they could convict him for the lesser-included offense of assault in the fourth degree. Superior Court Judge Roy H. Madsen denied Dolchok's request, relying on Hartley v. State, 653 P.2d 1052 (Alaska App.1982). DISCUSSION When a timely request is made, the trial court must instruct the jury on offenses which are necessarily included in the offense charged. Comeau v. State, 758 P.2d 108, 109 (Alaska App.1988). The failure to do so justifies reversal of a conviction on the offense charged. Christie v. State, 580 P.2d 310, 318 (Alaska 1978). Alaska uses the cognate approach for determining whether a lesser offense is necessarily included in the offense charged. In contrast to the statutory elements approach, "[t]he cognate approach concentrates more broadly and realistically on the facts charged in the complaint or indictment and on the evidence actually presented at trial." Comeau, 758 P.2d at 109. Therefore, we must consider the different versions of the offense presented to the jury, as well as the theories of the case presented by both the state and the defense. The state's theory was that this was a forcible acquaintance rape. This theory was supported by the victim's testimony and by the testimony of Officer Zager. Dolchok's theory of defense was that R.R. consented to the act of sexual intercourse or, in the alternative, that she failed to manifest her lack of consent. To support his theory, Dolchok testified, and he introduced testimony of the doctor who examined R.R. at the emergency room. The doctor testified that although R.R. complained of pain all over, especially in the chest area, he found no visible bruises or broken bones through x-rays. The doctor did, however, note in his report a possible diagnosis of a chest contusion or fractured rib. A person is guilty of sexual assault in the first degree if that person "engages in sexual penetration with another person without consent of that person." AS 11.-41.410(a)(1). In Reynolds v. State, 664 P.2d 621, 625 (Alaska App.1983), this court further defined the offense. We stated that "[i]n order to prove a violation of AS 11.41.410(a)(1), the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim's lack of consent." Id. A person is guilty of assault in the fourth degree if: (1) that person recklessly causes physical injury to another person; (2) with criminal negligence that person causes physical injury to another person by means of a dangerous instrument; or (3) by words or other conduct that person recklessly places another person in fear of imminent physical injury. AS 11.41.230(a). In Hartley v. State, 653 P.2d 1052 (Alaska App.1982), the defendant was charged and convicted of sexual assault in the first degree and burglary in the first degree. We rejected the defendant's argument that he was entitled to lesser-included offense instructions on simple assault, attempted sexual assault in the first degree, and sexual assault in the second degree. Id. at 1054-55. Hartley's defense at trial was consent. He argued that the jury could have found that he had assaulted the victim, but that after the assault, the victim could have forgiven him and consented to the sexual contact. We held that this factual scenario did not constitute a true lesser-included offense, but instead amounted to separate offenses. We stated, "A true lesser-included offense requires some evidence which would support a jury finding that the state did not prove one or more elements of a greater offense, thereby permitting the jury to find the lesser offense." Id. at 1054. In a subsequent case, Nathaniel v. State, 668 P.2d 851 (Alaska App.1983), we found that the trial court erred in failing to give a lesser-included instruction on fourth-degree assault in a trial for first-degree sexual assault. Id. at 856. The state's evidence showed that the defendant had attacked and beat the victim. We noted that because Alaska uses the cognate theory in determining whether an offense is necessarily included in another offense, the state's reliance on evidence of physical violence to establish the lack of consent requires that fourth-degree assault be included in the offense of first-degree sexual assault. Although we expressed doubt as to whether a jury could reasonably find that a victim consented to sexual intercourse immediately after a violent assault, we found that the "evidence at trial as to whether [the defendant] actually engaged in sexual intercourse with [the victim] after attacking her was sufficiently disputed to require a lesser-included offense instruction." Id. at 855. In contrast, Dolchok does not dispute that he engaged in sexual intercourse with R.R. Instead, he argues that he could be guilty of assault in the fourth degree if he recklessly committed an assault, but at the same time, he could not be guilty of sexual assault in the first degree if he did not recklessly disregard R.R.'s lack of consent to sexual intercourse. He contends that Hartley was wrongly decided as it equates assault with coercion and lack of consent. Because Hartley was decided before Reynolds, Dolchok posits that Hartley failed to address the third element of sexual assault, whether the defendant recklessly disregarded the alleged victim's lack of consent. Dolchok argues that the jury could have concluded that he was initially "too rough," but that R.R. did not communicate her lack of consent about sexual relations to him. Therefore, he would not have been recklessly disregarding her lack of consent, although he may have been guilty of assault in the fourth degree. The state responds that Dolchok is not recognizing the "recklessness" and "lack of consent" elements of fourth-degree assault. Alaska Statute 11.41.230(a)(1) requires that the person recklessly cause physical injury to another person. Alaska Statute 11.81.900(a)(3) provides: [A] person acts "recklessly" with respect to a result or to a circumstance . when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation[.] The state also argues that consent is a defense to assault as well as to sexual assault. See R. Perkins and R. Boyce, Criminal Law 154 (3rd ed. 1982); Hartley, 653 P.2d at 1054. Therefore, the state posits, when two people consent to rough sexual activity, one is not necessarily guilty of fourth-degree assault if the other suffers a physical injury so long as the injury suffered was within the scope of the consent. Thus, the state argues that Dolchok would have to demonstrate for the jury that he did not recklessly disregard R.R.'s lack of consent to sexual intercourse, but that he did recklessly disregard a substantial and unjustifiable risk that he might be inflicting physical injury on R.R. without her consent. Our decision in this case makes it unnecessary for us to decide whether a person may "consent" to a criminal physical assault, and if so, under what circumstances. See Annotation: Consent as Defense to Charge of Criminal Assault and Battery, 58 A.L.R. 3rd 662 (1974). Neither of these issues was decided in Hartley, and we see no reason to decide them now. The trial court must give an instruction on a lesser offense if "a finding of guilt on the greater offense would be inconsistent with acquittal on the lesser, and there is a disputed fact that distinguishes the greater offense from the lesser...." Marker v. State, 692 P.2d 977, 980 (Alaska App.1984). Considering R.R.'s testimony in this case, a finding of guilt on the sexual assault offense would be inconsistent with an acquittal on a fourth-degree assault charge. The issue is whether there was some evidence of a disputed fact to distinguish sexual assault from assault in the fourth degree. Id. See also Baden v. State, 667 P.2d 1275, 1278-79 (Alaska App.1983) (evidence that defendant lacked specific intent to sexually assault victim warranted lesser included instruction on assault in fourth degree in attempted sexual assault prosecution). In order to prevail, Dolchok must show that there was "some evidence" that R.R. consented to sexual intercourse, or that Dolchok did not recklessly disregard R.R.'s lack of consent, but that he did physically assault R.R. without her consent. We discussed the definition of "some evidence" in Nathaniel, noting that the evidence presented must be "more than a scintilla but less than that which would compel a reasonable doubt as a matter of law." Nathaniel, 668 P.2d at 854 (quoting Christie v. State, 580 P.2d 310, 315 (Alaska 1978)). We stated that the defendant need not present the evidence, but the evidence may arise from a weakness in the prosecution's evidence, impeachment of the prosecution's witnesses, or as circumstantial evidence presented as part of the state's case-in-chief. Nathaniel, 668 P.2d at 855. In Nathaniel, the evidence as to whether intercourse had occurred was sufficiently in dispute to require the lesser-included offense instruction for fourth-degree assault. Here, there is no dispute that sexual intercourse occurred. The only dispute is whether or not it was consensual. The jury was presented with two versions of the facts. Dolchok's testimony at trial supported his theory that he used no force and that the act of intercourse was consensual. On the other hand, Dolchok's statements to Officer Zager and R.R.'s testimony presented a scenario in which the entire act of intercourse was forcible. Dolchok's as-saultive behavior described by R.R. at trial consisted of restraining her while taking her clothes off and raping her. There is nothing in R.R.'s testimony that would permit a reasonable juror to infer that R.R. consented to sexual intercourse, but that she did not consent to the forceful behavior accompanying it. If a jury found that this conduct constituted assault, it could not reasonably find that it did not constitute a reckless disregard for her lack of consent to sexual intercourse. See Nathaniel, 668 P.2d at 855. We therefore find that Judge Madsen did not abuse his discretion in refusing to instruct the jury on the lesser-included offense of assault in the fourth degree. See Johnson v. State, 665 P.2d 566, 569 (Alaska App.1983). The conviction is AFFIRMED. . It appears that Dolchok is arguing that a woman might lead a man to reasonably believe that she was willing to engage in sexual intercourse with him while at the same time making it clear to him that she would not permit him to physically abuse her. In such circumstances, Dol-chok seems to conclude, if he physically abused her he might be found by a reasonable jury to have recklessly disregarded his partner's lack of consent to physical abuse without necessarily recklessly disregarding her lack of consent to the sexual intercourse. . Dolchok testified that he forcibly escorted a resisting R.R. down the stairs to watch television. It was sometime thereafter that Dol-chok contends that consensual sexual intercourse occurred. If forcing R.R. to go downstairs constituted a fourth-degree assault, but did not influence R.R.'s decision whether or not to have intercourse with Dolchok, it was the kind of separate offense discussed in Hartley, which would not be a lesser offense included within the charge of sexual assault presented to the jury. Alternatively, if R.R. had sexual relations with Dolchok out of fears generated by the earlier assault, then she did not "consent" to the sexual intercourse.

10328660

Keith WASSERMAN and Kristi Wasserman, Appellants, v. Hayden BARTHOLOMEW, Ken Steinnerd, City of Fairbanks, John Roberts, and State of Alaska, Appellees

Wasserman v. Bartholomew

1996-09-20

No. S-5584

806

817

923 P.2d 806

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Keith WASSERMAN and Kristi Wasserman, Appellants, v. Hayden BARTHOLOMEW, Ken Steinnerd, City of Fairbanks, John Roberts, and State of Alaska, Appellees.

Keith WASSERMAN and Kristi Wasserman, Appellants, v. Hayden BARTHOLOMEW, Ken Steinnerd, City of Fairbanks, John Roberts, and State of Alaska, Appellees. No. S-5584. Supreme Court of Alaska. Sept. 20, 1996. William R. Satterberg, Jr., Fairbanks, for Appellants. James R. Blair, Winfree & Hompesch, Fairbanks, for Appellees Hayden Bartholomew, Ken Steinnerd, and City of Fairbanks. Randy M. Olsen, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellees John Roberts and State of Alaska. Before COMPTON, C.J., RABINOWITZ, MATTHEWS, and EASTAUGH, JJ., and CARPENETI, J. Pro Tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

6944

43698

OPINION CARPENETI, Justice Pro Tem. I. INTRODUCTION Keith Wasserman was mistakenly apprehended by police, who incorrectly believed he was a fleeing felon, as he shopped for groceries. Wasserman and his wife, Kristi Wasser-man, sued local police and state troopers, the City of Fairbanks (the City) and the State of Alaska for the acts of the peace officers. The trial court, sitting without a jury, returned a verdict in favor of the defendants. The Wassermans appeal. They claim that the superior court erred in a number of evidentiary rulings, in denying their post-trial motion to disqualify the judge, and in evaluating the evidence. We affirm the trial court with respect to all of its rulings but one. As to its exclusion of one witness's testimony, we reverse and remand for appropriate disposition. II. FACTS AND PROCEEDINGS A. The Facts In October 1990 Wasserman was shopping at University Center Safeway in Fairbanks. Upon reaching the check-out stand, he asked a Safeway employee about the location of an item that had been advertised as on sale but which he was unable to find. He was directed to the appropriate section and, leaving his young son momentarily at the cash register, began jogging toward that part of the store. About that time, a group of Fairbanks police officers and state troopers entered Safeway looking for John Palmer, a fleeing felon. Wasserman had the misfortune to match several characteristics of the rough description of Palmer possessed by the officers. At this point Wasserman's account of the facts diverged from the defendants' version. He testified to hearing someone yell "Stop!" and seeing dark-clad men running after him. He said he was then grabbed by the jacket and told to put his hands behind his back. He pulled away and asked, 'What for?" The command was repeated, and Wasserman again refused, exclaiming, 'Wait a minute, I've got my rights." According to Wasser-man, someone (later identified as State Trooper John Roberts) then wrapped an arm around his neck. Then Trooper Roberts either lost his balance or someone knocked Wasserman's feet out from under him, and everyone fell to the floor. Wasserman stated that he could not breathe at this point, and that someone told him, "Put your hands behind your back and we'll let you breathe." Wasserman put his hands behind his back, was handcuffed, and was pulled up to his feet. Shortly afterward, the police discovered that they had the wrong man. Wasser-man was released, and the officers left to pursue Palmer, although a lieutenant remained behind to discuss the matter. Wasserman also testified that during this incident the police did not initially identify themselves and that he did not recognize them as officers of the law. In addition, he claimed that the officers never explained their purpose in stopping him, never asked him for identification, and never told him he was under arrest. He sued the City of Fairbanks and two individual Fairbanks officers, as well as the State of Alaska and two troop ers, claiming that the officers' actions constituted "assault, battery, a negligent infliction of harm, and unreasonable use of force" causing him a number of serious injuries. Was-serman's "wife Kristi sued for loss of consortium and emotional distress. The accounts of the incident provided by the police officers and several bystanders differed significantly from Wasserman's description. According to the officers' testimony, they were in full uniform and unmistakable as police officers. The defense contended that Fairbanks police officer Bartholomew entered the store and made eye contact with Wasserman, and then raised his hand and called out, at which point Wasserman turned and began to run. According to Officer Bartholomew, when Wasserman stopped, Bartholomew informed him that he resembled a federal fugitive and requested identification. Officer Stein-nerd and Trooper Manns also contended that Wasserman was advised that he resembled a federal fugitive. Wasserman did not produce identification, nor did he say that he was not the man the officers were seeking. State Trooper Roberts reached the group as the city officers were attempting to grab Wasserman's arms. Roberts testified that he approached Wasser-man from behind and threw his arms around Wasserman's shoulders or arms. Roberts lost his balance, and next remembers "us all going to the floor." Because Wasserman continued to struggle, a Fairbanks officer handcuffed him. The officers then pulled Wasserman to his feet, learned that he was not the fugitive, and released him. Roger Hanson, the produce manager at Safeway, essentially corroborated the officers' account. Hanson heard Wasserman being asked to produce identification, and said that Wasserman did not comply and began to resist. Hanson testified that an officer grasped Wasserman by the shoulder, and Wasserman pulled away. He testified that the officers were "striving] to keep [Wasser-man] from moving his arms" and Hanson had the impression that "they wanted him to keep his hands in sight." He explained that "[a]s [Wasserman] was pulling more away from [the police] they grabbed him more forcefully." Hanson then saw an officer (Trooper Roberts) grab Wasserman around the chest from behind. Hanson then saw Wasserman "[w]restl[ed] down" to the floor. B. Motions Before and During the Trial Shortly before trial, the case was reassigned to Superior Court Judge Ralph Beist-line, who had recently been appointed to the bench. Approximately one month later, the Wassermans invited the defendants to stipulate to a bench trial. The defendants accepted, so long as the case was tried before Judge Beistline. During discovery one of the Wassermans' witnesses, Delores Delacruz, stated at her deposition that she would not answer questions without first obtaining immunity from future contacts with police agencies. The Wassermans said that they intended to call Delacruz as a witness at trial, and moved for a protective order. This motion was denied. On the fourth day of trial, when the Wasser-mans stated that they would call Delacruz as a witness, the defendants expressed surprise and moved to strike her from the witness list. The court granted the motion to strike. The court's rationale for excluding her testimony was that the defense had been denied discovery of her testimony, and that it would merely be cumulative. The Wassermans later attempted to call Delacruz as a rebuttal witness. The court denied this request for similar reasons. C. The Trial Court's Judgment The trial court found that the law enforcement officers had a justified belief that a federal fugitive, armed and dangerous, was in the Safeway store and that Keith Wasserman resembled that fugitive. It found that "[t]he police officers were in full uniform," that Mr. Wasserman should have known they were officers, that they requested identification, and that they told Wasserman that he resembled a fugitive. In the ensuing struggle, the court found that Roberts held Wasserman by the shoulders, did not use a choke hold and did not use deadly or excessive force, and that their contact was of short duration. The court described the incident as "an unfortunate combination of mistaken identities and misunderstandings." As a matter of law, the court found that the defendants were peace officers whose use of force was nondeadly and justified as reasonable under the circumstances. The defendants' use of force, it held, was statutorily privileged and did not constitute negligence. It denied the Wassermans' claims and dismissed them with prejudice. D. The Post-trial Attempt to Disqualify the Judge Three months after the trial court entered its findings and conclusions, the Wassermans filed a motion for a new trial. The motion was essentially a motion to disqualify Judge Beistline for cause pursuant to AS 22.20.020. Before his elevation to the bench, Judge Beistline worked in Fairbanks for the law firm of Hughes, Thorsness, Gantz, Powell & Brundin. The Wassermans stated in their motion that they had learned only after trial that Hughes, Thorsness had represented the City of Fairbanks in a high profile case involving the City's police and fire departments. According to the Wassermans, their subsequent research indicated that the City had paid "several hundreds of thousands of dollars" in legal fees to Hughes, Thorsness. The Wassermans argued that because Judge Beistline failed to disclose in their case that his firm had previously represented the City of Fairbanks, a defendant in their case, and to recuse himself "if appropriate," a new trial was warranted. Judge Beistline denied the motion for a new trial because it was both untimely and "factually and legally unsupported." Regarding timeliness, Judge Beistline noted that the motion was brought three months after trial. He took judicial notice that counsel for the Wassermans, William Satterberg, knew at the time of the trial that Judge Beistline had formerly represented the City of Fairbanks. Judge Beistline's reason for taking judicial notice was that he and Satter-berg had been opposing counsel (with Beist-line representing the City of Fairbanks) in a 1989 case. Furthermore, Judge Beistline said, in the recent high profile case that allegedly brought Hughes, Thorsness's representation of Fairbanks to the Wassermans' attention, Judge Beistline had performed only insignificant legal work for the City. Judge Beistline's decision also restéd on the facts that Satterberg had supported Judge Beistline's appointment to judicial office, that Satterberg had told a television interviewer that Judge Beistline was fair, that "[i]t is unlikely that an attorney of Mr. Satterberg's stature . would be unaware of' Hughes, Thorsness's representation of the City of Fairbanks, and that Satterberg "was associ ated at the time with two former associates of Hughes, Thorsness." After Judge Beistline denied the Wasser-mans' motion, the Wassermans applied to this court to disqualify Judge Beistline for cause. The issue was assigned to Judge Hodges for review pursuant to AS 22.20.020(e). Judge Hodges affirmed Judge Beistline's conclusion that AS 22.20.020 did not require Judge Beistline to recuse himself or to disclose his former firm's representation of the City. On the related issue whether Judge Beistline's presiding created an appearance of impropriety, Judge Hodges remanded to Judge Beistline for determination. Briefing on the issue ensued. Judge Beistline found that there was no appearance of impropriety, and after hearing oral argument Judge Hodges affirmed that ruling. On appeal, the Wassermans challenge the exclusion of Delacruz's testimony, the denial of their motions to disqualify Judge Beistline for cause, and several other issues. III. DISCUSSION A. The Testimony of Delores Delacruz Was Erroneously Excluded. The Wassermans' first point on appeal claims that the trial court erred in refusing to allow the testimony of Delores Delacruz, whom the Wassermans describe as the non-party witness with the closest view of the Safeway incident. The Wassermans characterize the court's exclusion of her testimony as a Civil Rule 37 sanction for her refusal to testify at a deposition. The court stated an additional reason for excluding Delacruz's testimony: that it would be cumulative under Evidence Rule 408. We conclude that neither of these reasons was sufficient to bar the testimony, and that the court erred in excluding Delacruz's testimony. 1. Civil Rule 37 The court's first rationale for excluding Delacruz's testimony was as a sanction for her non-responsiveness at discovery. Although the court did not explicitly cite Civil Rule 37 in its ruling, the principal source of sanctions for inadequate discovery responses is Civil Rule 37. We conclude, however, that Civil Rule 37 cannot be the basis for excluding the testimony. First, exclusion of testimony is not an appropriate or effective sanction under Civil Rule 37 where the recalcitrant witness is not a party. (The appropriate sanction in these circumstances is an award of "reasonable expenses" under Civil Rule 37(a)(4)(A).) Second, there is no indication that the appellants, allegedly harmed by the exclusion, encouraged or caused the refusal of the non-party to answer questions at the deposition. In these circumstances, it would not be just to impose a sanction against a party that had done nothing wrong. Because Delacruz was not a party, and because the defendants did not seek an order to compel her deposition testimony, we conclude that the trial court abused its discretion in prohibiting her testimony as a Civil Rule 37 sanction for her refusal to cooperate at the deposition. We do not mean to suggest that the trial court was without power to address the situation confronting it on the fourth day of trial when counsel for the plaintiffs announced his intent to call the previously recalcitrant witness. Trial courts have the power to regulate the manner in which evidence is discovered and disclosed at trial. In extreme circumstances, a trial court may properly conclude that only exclusion of a non-party witness's testimony can redress the unfairness of the situation. In the instant ease, however, there is no showing that exclusion is justifiable on these grounds. It was not established that the witness's initial non-cooperation was secured at the plaintiffs' urging. It appeared clear from the record that a mid-trial deposition was entirely feasible. In these circumstances, exclusion of Delacruz's testimony on the ground that it was necessary to avoid prejudice was error. 2. Evidence Rule ⅛03 The court's reasons for excluding Delacruz's testimony included these statements: "Hit's potentially cumulative," "[wje've got many, many fact witnesses," and "there are so many witnesses on the subject." These statements suggest exclusion under Evidence Rule 403 for "undue delay, waste of time, or needless presentation of cumulative evidence." The court made its ruling without knowledge of the contents of Delacruz's sealed statement. Our knowledge of that statement is the most important basis for the following analysis and our consequent determination that Delacruz's testimony should have been admitted. Although the trial court stated that Delacruz was "not the key witness," her statement reveals that she could be the most important non-party witness. Seven non-party fact witnesses who were in or near the Safeway testified: Martha Roth, Arlene Aba-lahin, Renee Dewberry, Joy Morrison, Tammy Pruitt, Vincent James Valenza and Roger Hanson. Most of the non-party witnesses were quite distant from the scuffle and stated that their perceptions of it were limited. In comparison, Delacruz states that she was 10-15 feet away. With the possible exception of Roger Hanson, this would make her the closest non-party witness and would lend significance to what she observed. While the trial court said that there was "not that large of a diversity" between the parties' accounts of the facts, several important facts are disputed: whether the police officers were identifiable as peace officers, whether an officer held Keith Wasserman in a choke hold, and what the officers told Wasserman before they seized him. On each of these points, Delacruz had testimony to offer that was highly favorable to plaintiffs. Delacruz stated that the officers were not identifiable as peace officers, that one of them held Wasserman in what was apparently a choke hold, and that none of them asked Wasserman for identification or told him why they were detaining him. Her testimony, if believed, would strongly have supported the plaintiffs' theory of the ease. Evidence properly excludable as "cumulative" falls into two categories. One is evidence supporting an uncontested or established fact. United States v. Hearst, 563 F.2d 1331, 1350 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); Sloan v. Atlantic Richfield Co., 541 P.2d 717, 722 n. 7 (Alaska 1975), modified on other grounds, 552 P.2d 157 (Alaska 1976). The second is evidence repeating a point made by previous evidence. United States v. Stirling, 571 F.2d 708, 736 (2d Cir.1978), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978); Williams v. Utility Equip., Inc., 837 P.2d 1112, 1115-16 (Alaska 1992); Schneider v. Cessna Aircraft Co., 150 Ariz. 153, 722 P.2d 321, 331 (App.1985). Delacruz's testimony is clearly not cumulative evidence of the first sort; the Safeway events are disputed. It is not the second, repetitious, sort of cumulative evidence; Delacruz is the only non-party witness who states that the police were not identifiable as police officers, and did not disclose the reason they stopped Keith Wasserman. Moreover, her status as perhaps the closest non-party witness makes exclusion of her testimony questionable. See Zaken v. Boerer, 964 F.2d 1319, 1323 (2d Cir.1992) (rejecting exclusion of testimony as cumulative where all other comparable witnesses were parties or had also sued defendant), cert. denied, 506 U.S. 975, 113 S.Ct. 467, 121 L.Ed.2d 375 (1992); see also Kobos By and Through Kobos v. Everts, 768 P.2d 534, 545-46 (Wyo. 1989). While the defense could identify reasons to discredit Delacruz's testimony, her credibility should not affect whether her testimony is inadmissible as cumulative. The Wassermans' counsel came close to inviting this ruling, by calling on Delacruz after several fact witnesses who provided little or no support for their account and by describing her testimony at one point as "more of the same, perhaps." However, a witness's account of disputed facts cannot be considered cumulative on the basis 'that the court has heard several versions of the facts that differ substantially from the excluded witness's version. The court's opinion could be read to suggest other Rule 403 rationales: "undue delay" and "waste of time." They do not apply. These rationales generally serve to contain a peripheral but potentially time-consuming issue. See Fairbanks N. Star Borough v. Kandik Const., 795 P.2d 793, 801 (Alaska 1990) ("It was not necessary for the court to suffer a trial within a trial on this minor issue."); Alaska Northern Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 42 (Alaska 1983) ("to prevent the 'sideshow [from] swallow[ing] up the circus' ") (alterations in original), cert. denied, 464 U.S. 1041, 104 S.Ct. 706, 79 L.Ed.2d 170 (1984). Exclusion on these grounds of evidence pertaining to the central issue at trial is rarely within the trial court's discretion. See Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 530 (9th Cir.1986) (rejecting exclusion of expert testimony essential to plaintiffs' case); Denison v. Anchorage, 630 P.2d 1001, 1003 (Alaska App.1981) (rejecting exclusion as "undue delay or waste of time" of circumstantial evidence of defendant's sobriety in drunk driving trial); 29 Am.Jur.2d Evidence § 353 at 386 (1994) ("[E]vidence should not be excluded on the ground of delay or waste of time when the proffered evidence is of central importance to the case."). Because Delacruz's testimony goes to the central issue of the ease, it is not excludable for reasons of undue delay or waste of time. As the rationales of cumulative evidence, undue delay, or waste of time are all inapplicable, we find that the trial court abused its discretion in excluding Delacruz's evidence under Evidence Rule 403. 3. Remedies Although it was error to exclude the testimony of Delores Delacruz on grounds of either Civil Rule 37 or Evidence Rule 403, it does not necessarily follow that a new trial must be granted. The determination of the context in which the improperly excluded evidence should be heard will be left, in the first instance, to the trial court. After giving the parties the opportunity to be heard, the trial court should decide whether to reopen the evidence solely to entertain the testimony of Delores Delacruz, to reopen to entertain her testimony and any other evidence within the ambit of her testimony, (allowing, for example, impeachment and rebuttal evidence), or to hold a new trial. B. The Trial Court Correctly Denied the Wassermans' Request for Disqualification . The Wassermans' second and third points on appeal concern their attempt to disqualify Judge Beistline. They argue that Judge Beistline should have granted their motion for a new trial because his presiding over their case and his non-disclosure of his prior legal work for the defendant City of Fairbanks created an "appearance of partiality." They also claim that Judge Beistline erred by considering information that was not in evidence when he denied the motion for a new trial. Judge Beistline denied the Wassermans' disqualification motion because he found that it was both untimely and lacked merit. Judge Hodges affirmed the ruling on its merits. We affirm the lower court's rulings on the merits as being soundly within the scope of judicial discretion. Two bodies of law provide standards for disqualification of a judge for cause: AS 22.20.020(a) and the Alaska Code of Judicial Conduct, Canon 3.C. The two bodies of law axe "related, but somewhat different." Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353 n. 7 (Alaska 1987), cert, denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). The canon and the statute set different standards and apply in different situations. See Feichtinger v. State, 779 P.2d 344, 347 n. 4 (Alaska App.1989) (distinguishing Canon 3 and AS 22.20.020 by noting that a judge may recuse himself or herself under the canon, but only the statute allows one judge to disqualify another judge). However, we have relied upon the canon to interpret the statute, in particular finding that because of the canon, AS 22.20.020(a)(9) includes an "appearance of impartiality." Perotti v. State, 806 P.2d 325, 327 (Alaska App.1991); Amidon v. State, 604 P.2d 575, 577-78 (Alaska 1979). Prior representation by a judge of the state or a municipality is not enumerated among grounds for disqualification in the statute or the canon. Alaska Statute 22.20.020 compels disqualification of a judge who counseled one party as an attorney within the last two years, as Judge Beistline did for the City of Fairbanks, but not where the former client is "the state or a municipality of the state." AS 22.20.020(a)(5). Reasons for this exception are that representing the state or a municipality, unlike representation of private clients, does not lead to a disqualifying loyalty, Mustafoski v. State, 867 P.2d 824, 835 (Alaska App.1994), and that many new judges, including all former district attorneys, assistant attorneys general, and municipal attorneys, would have to recuse themselves from "a wide range of proceedings both criminal and civil." Keel v. State, 552 P.2d 155, 157 (Alaska 1976). This leaves the more vague "appearance of partiality" claim based on AS 22.20.020(a)(9) and Canon 3.C(1). Judge Beistline rejected that claim, and Judge Hodges found his decision not to be an abuse of discretion. This court is deferential to judges' decisions regarding the "appearance of partiality." Amidon, 604 P.2d at 577. Although the language of AS 22.20.020(a)(9) relies on a judge's subjective decision, review applies an objective standard based on a fair-minded person. Mustafoski, 867 P.2d 824, 831 n. 3. A fair-minded party would rationally conclude that Judge Beistline did not breach the appearance of impartiality, either by presiding over the case or by failing to disclose his prior representation. Two principal reasons support this conclusion: remaining on this case after working for the municipality was allowed by an explicit statutory exception, and the governmental interests he had represented differ from the interests held by the parties in this suit. We therefore affirm the superior court's ruling that Judge Beist-line did not need to disqualify himself or to disclose his prior legal work on behalf of the City of Fairbanks. C. The Trial Court Did Not Err in Admitting Keith Wasserman's Psychiatric Records into Evidence. The Wassermans' next argument contends that the court should have excluded Wasser-man's psychiatric records. Their argument on this subject cites no authority and fails to provide a legal theory under which the records should have been excluded. This argument is therefore considered waived. D. The Trial Court Did Not Err in Excluding the Deposition Testimony of Officers Steinnerd and Bartholomew. The Wassermans contend that the trial court excluded the deposition testimony of Officers Steinnerd and Bartholomew, which the Wassermans wanted to introduce on rebuttal. The Wassermans do not provide a record citation for the court's alleged exclusion of this testimony, however, and the transcript demonstrates that the court in fact admitted the pages of the Bartholomew transcript that the Wassermans offered. The transcript does not indicate that the Wasser-mans' counsel requested the admission of transcript testimony from Officer Steinnerd. The Wassermans did offer deposition testimony of Trooper Manns, who was originally a defendant but was later dropped from the case. The trial court excluded this testimony as cumulative. The Wassermans do not appeal the exclusion of Trooper Manns' deposition testimony. Assuming that the Wasser-mans meant to appeal the exclusion of Manns' testimony, their claim lacks merit. Their arguments attempt to demonstrate that the proffered deposition testimony was relevant and not hearsay. The court excluded Manns' testimony not because it was irrelevant or hearsay, but because, in the court's view, it was cumulative. The Wassermans have made no argument in opposition to that ruling, and there is no basis to conclude that it was an abuse of discretion. For these reasons, we reject the Wassermans' arguments regarding the admissibility of deposition testimony. E. The Trial Court's Decision Was Not "Against the Substantial Weight of the Evidence. " Finally, the Wassermans claim that. "[w]ith the exception of Trooper Roberts, and Officer Steinnerd, everyone at the scene saw Trooper Roberts's arm go around Keith Wasserman's neck." From this premise the Wassermans argue that the evidence did not allow the trial court to make the following findings of fact: [Trooper] Roberts grasped Wasserman around the upper shoulders to obtain control. He did not apply a "choke hold," although Wasserman's neck was likely impacted by Roberts' arms in the scuffle. Roberts' contact with Wasserman cannot be classified as deadly force. The Wassermans ask this court to find liability "on the part of Trooper Roberts if no one else." They claim that since the other officers were "part and parcel to the attack on Wasserman," they should also be held liable by this court. The flaw in this argument is that it rests on a false premise. It is simply not true that with the exception of two officers, "everyone at the scene saw Trooper Roberts's arm go around Keith Wasserman's neck." Roger Hanson's testimony corroborated the testimony of Trooper Roberts, who said that he did not apply a choke hold to Wasserman. Hanson, the produce manager at Safeway, testified that Roberts wrapped his arms around Wasserman's chest. Doctor Eric Stirling, who examined Wasserman in the Fairbanks Memorial Hospital emergency room on the morning after the Safeway incident, also contradicted Wasserman's choke hold allegation. Dr. Stirling had experience with injuries suffered during arrest struggles, and was familiar with the medical symptoms that would result from a choke hold. His notes indicate no evidence of several of these symptoms. This testimony provides evidentiary support for the trial court's factual finding that [t]here was conflicting testimony as to whether Roberts' arm or arms were around Wasserman's neck or shoulders. Several witnesses saw arms near Wasser-man's neck while others believed them to be around his shoulders or upper body. Medical evaluation did not substantiate a choke hold.... In sum, it is not true, as the Wassermans imply, that there was nearly unanimous testimony that Trooper Roberts grabbed Wasser-man around the neck. In fact, no percipient witness besides Wasserman clearly testified to the existence of a choke hold. The Was-sermans fail to cite any passage of the record in support of their assertion that "everyone at the scene" saw Roberts put his arm around Wasserman's neck. Given the conflicting testimony on this issue, it cannot be said that the trial court's factual findings regarding Trooper Roberts' actions were clearly erroneous. We therefore reject the Wassermans' final argument on appeal. IV. CONCLUSION The trial court correctly denied the Was-sermans' request for disqualification, correctly decided questions concerning the admission of deposition testimony and psychiatric records, and rendered a decision that was not against the weight of the evidence. The trial court did err in refusing to admit the testimony of Delores Delaeruz. On remand, after briefing by the parties, the trial court should determine the most appropriate procedural remedy. We therefore AFFIRM the lower court's ruling in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. MOORE, J., not participating. . The individuals the Wassermans sued were Fairbanks Officers Hayden Bartholomew and Ken Steinnerd and State Troopers John Roberts and Jeffrey Manns. The claims against Manns were later dismissed by stipulation. . Wasserman contends that Trooper Roberts' hold on him was "effectively a choke hold," which "placed [him] in serious danger of being choked to death." He also claims he was injured in the fall to the floor, and again when one of the officers dug a knee into his back as he lay face-down on the floor. Finally, he claims that his wrists were injured by improperly-applied handcuffs. . Wasserman's son Levi sued for emotional distress, but Levi Wasserman's case was later dismissed by agreement between the parties. . Wasserman acknowledged on cross-examination that there was a "good possibility" that Officer Bartholomew told him, "You resemble a person we're looking for, a felon." . Hanson's account of the incident was the most detailed of any third-party witness. Other fact witnesses were called to the stand by Wasserman and partially corroborated each side's stories. . Alleging a series of past abuses on the part of the Fairbanks Police Department directed against Delacruz and her family and alleging that she feared future harassment were she to testify, the Wassermans sought a protective order "precluding the police department from contacting [Delacruz] except in the context of actively attempting to stop a crime in progress, or in the event she contacts them for assistance." . In order to meet the argument that the defendants had been denied discovery by Delacruz's earlier statement that she would not answer questions without immunity, the Wassermans suggested that the defendants could depose Delacruz over a three-day weekend, which was about to occur. The defense continued to object, and the court excluded her testimony, stating that "it's not necessary to put the parties through having to conduct discovery over the weekend." . Subsequent testimony showed that the amount of work he had performed was one-half hour. . The State is no longer a party. At trial, the State sought summary judgment on the basis of statutory immunity from the Wassermans' vicarious liability/respondeat superior claim. The Wassermans acknowledged at the trial that they were not pursuing a vicarious liability theory against the State. They alleged active negligence based on the State's purported failure to train and supervise troopers adequately. The court granted summary judgment on the vicarious liability claim, leaving the issue of training for trial. The State received a directed verdict on the training issue, and the Wassermans do not appeal it. . "Trial courts are vested 'with broad discretion as to the choice of sanction in a given situation.' " Rohweder v. Fleetwood Homes of Or., Inc., 767 P.2d 187, 190 (Alaska 1989) (quoting Hawes Firearms Co. v. Edwards, 634 P.2d 377, 378 (Alaska 1981) (imposing Rule 37 sanctions for discovery abuse)). "[Sjanctions imposed under Civil Rule 37(b) are set aside only if the trial court has abused its discretion." Rohweder, 767 P.2d at 190 (citing Honda Motor Co. v. Salzman, 751 P.2d 489, 492 n. 7 (Alaska 1988), cert. dismissed, 487 U.S. 1260, 109 S.Ct. 20, 101 L.Ed.2d 972 (1988)). . Rule 37 allows a wide variety of sanctions. Glover v. Sager, 667 P.2d 1198, 1203-04 (Alaska 1983). One appropriate sanction is to preclude or strike a party witness's trial testimony. Alaska R. Civ. P. 37(b)(2)(B); State v. Guinn, 555 P.2d 530, 542 (Alaska 1976) (striking trial testimony of representative party witness for failure to comply with discovery order); Waicis v. Superior Court (Schwartz), 226 Cal.App.3d 283, 276 Cal.Rptr. 45, 48 (1990) (precluding trial testimony of a noncooperative deponent). . Civil Rule 37(b)(2) sanctions, such as an order precluding testimony, are not available against non-party witnesses. The sanction available against a non-party witness is contempt, under Civil Rule 37(b)(1). Moreover, sanctions under Rule 37(b) apply only after a witness has violated a court order compelling discovery. See Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 120-22 (Alaska 1993); Bachner v. Pearson, 432 P.2d 525, 528, 532 (Alaska 1967) (Rabinowitz, J., dissenting) ("¡T]he sanctions there provided do not come into play unless a party has refused to obey an order made under Rule 37(a)."). Because the defendants did not seek a court order under Rule 37(a)(2)(B) compelling Delacruz to respond, the court could not impose any Rule 37(b) sanctions. The rationale for requiring a prior court order is that Rule 37(b) sanctions may be harsh. A court must afford a witness sufficient opportunity to consider whether he or she will respond, and to realize the seriousness of failure to respond, before it imposes sanctions. Also, a court must determine whether á witness has sound basis, such as privilege or the Fifth Amendment, for refusal to respond to a discovery request before it can impose Rule 37 sanctions. Societe Internationale v. Rogers, 357 U.S. 197, .210-12, 78 S.Ct. 1087, 1094-96, 2 L.Ed.2d 1255 (1958). The most appropriate time for that determination is before trial, at a hearing on a motion to compel discovery. . When she stated at her deposition that she would not answer questions without a protective order, the defendants could have sought to compel Delacruz to testify by filing a motion under Rule 37(a)(2)(B). They could have also brought a motion in limine to exclude Delacruz's testimony at trial. They did neither. . The Wassermans attempted to depose Delacruz. She declined to testify absent a protective order. The Wassermans shortly thereafter moved for a protective order. The court denied the motion. Trial commenced not long thereafter. On the fourth day of trial, plaintiffs' counsel announced that Delacruz had changed her mind and was now prepared to testify. One could conclude from these circumstances that the trial court correctly found that there had not been "equal access" to Delacruz. . For example, where the record is clear that a party has induced the non-party witness's noncooperation with discovery, and the exigencies of the trial schedule would not permit a mid-trial deposition, exclusion may well be appropriate. Exclusion in these circumstances would be imposed not to sanction the witness nor pursuant to Civil Rule 37, but to prevent undue prejudice to the party against whom the testimony was offered and who had no opportunity to prepare for the testimony. . Rule 403 gives a trial court discretion to exclude evidence. Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assoc., 795 P.2d 793, 801 (Alaska 1990), vacated, in part on other grounds, 823 P.2d 632 (Alaska 1991). This court reviews Rule 403 decisions under the abuse of discretion standard. Williams v. Utility Equip., Inc., 837 P.2d 1112, 1116 (Alaska 1992). . Roth "wasn't in a position to hear anything" other than shouting, and didn't see most of what transpired. Abalahin implied that she was a substantial distance from the events when she said she could hear Keith Wasserman yelling "all the way from the checkstand." Dewberry said she was about 70 feet away. Morrison was roughly 100 feet away. Pruitt's testimony was accepted by stipulation, so she did not testify on the disputed facts. . Delacruz's statement that the officers wore "dark clothing" and that she noticed no badges or other identifying marks is the only non-party witness's statement supporting the Wassermans' claim that the officers did not identify themselves to the Wassermans as peace officers. . There was substantial dispute at the trial over whether Roberts applied a choke hold to Wasser-man. One witness strongly corroborated Roberts' account that he held Wasserman around the chest. Four witnesses, including two police officers, testified that Wasserman was held around his neck or between his chin and shoulders, though some said the hold was not a choke hold. The Fairbanks Police Department's internal affairs control officer concluded that Wasserman was not held in a choke hold. The examining physician at the hospital found that Wassermans neck abrasions were consistent with the conclusion that he was held in a choke hold, but that several other typical indications of a choke hold were not present. Delacruz's affidavit, on the other hand, says that a police officer lifted Wasserman off the floor while holding him by his neck, in what appears to have been a choke hold. . Wasserman stated that the police did not ask him for identification at the initial apprehension. The defendants disagreed. Delacruz supported Wasserman: "at no time in my hearing, did [any officer] ask Mr. Wasserman for his identification." . Wasserman stated that the police did not initially tell him why they stopped him. The officers stated that Wasserman was initially told that he resembled a federal fugitive. The few statements of non-party witnesses on these issues support the defendants weakly, at best. On the other hand, Delacruz's statement that "at no time in my hearing, did [any officer] . explain to Mr. Wasserman why they were detaining him" is potentially vety important to the plaintiff. . Evidence falling within this second category should be excluded with caution, for repetition of the same evidence on a disputed point by several witnesses is often persuasive in establishing the truth of that evidence. Evidence should only be excluded on a disputed point as cumulative if the evidence on the point "is already so full that more witnesses to the same point could not be reasonably expected to be additionally persuasive." 6 John H. Wigmore, Evidence § 1908, at 760 (Chadboume Rev. 1976). . These include that Delacruz and her family had a history of substantial contacts with the Fairbanks Police Department, and she believed she had been subject to harassment by the department. This evidence could support a finding that she is biased against the Fairbanks Police Department. Moreover, Delacruz had a strong emotional reaction to the Safeway scuffle which left her 'shaken," and it could have been argued that she was a less reliable witness than others. Finally, her testimony disagreed with that of nearly every other non-party witness with regard to whether the officers were in uniform. . In the event that the trial court decides that a new trial should be granted, it need not revisit the question of bench or jury trial. That issue was resolved by the stipulation of the parties before the first trial. . The Wassermans moved for Judge Beistline to disqualify himself after the trial in the form of a "motion for new trial." Rejection of a motion to disqualify is reviewed under the abuse of discretion standard. Mustafoski v. State, 867 P.2d 824, 832 (Alaska App.1994). A motion for new trial is also reviewed under the abuse of discretion standard. Richey v. Oen, 824 P.2d 1371, 1375 (Alaska 1992); Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990). . On the question of timeliness, present Alaska law applies no timeliness requirement on motions to disqualify a judge for cause. Alaska case law concerning a comparable arbitration situation, convincing rulings from other jurisdictions, and common sense all suggest that a motion to disqualify a judge for cause could be rejected as untimely where allegations of bias are not raised until after an unfavorable decision. Alaska State Hous. Auth. v. Riley Pleas, Inc., 586 P.2d 1244, 1248-49 (Alaska 1978); State v. McCall, 160 Ariz. 119, 770 P.2d 1165, 1176 (1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3289, 111 L.Ed.2d 798 (1990). However, we decline to rely on the superior court's finding of untimeliness. This finding was based upon judicial notice of facts (such as the knowledge of the Wassermans' attorney, William Satterberg, based on his community involvement and association with former Hughes, Thorsness associates) that were not generally known but were within Judge Beistline's personal knowledge or belief. A fact subject to judicial notice is one "not subject to reasonable dispute" because it is either "generally known within this state" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Alaska R. Evid. 201. See also State v. Grogan, 628 P.2d 570, 573 n. 4 (Alaska 1981) (trial court judge "may have improperly taken judicial notice of facts within his personal knowledge"). .The Wassermans raised their initial claim under the canons, not under AS 22.20.020. However, they later stated their claims in terms of the statute, and the defendants and judges responded in terms of both sets of law. We analyze this issue with regard to both the statute and the canons. . This court has long held that "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." See, e.g., Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991); see also Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n. 8 (Alaska 1990) (holding that argument was waived where appellant mentioned argument in main brief but failed to "advance any legal argument as to why the court erred"). . This court reviews the superior court's factual findings under the clearly erroneous standard. Barber v. Barber, 837 P.2d 714, 716 n. 2 (Alaska 1992). . This ruling addresses the evidence which was actually admitted at the trial. It does not address the proposed testimony of Delores Delacruz, which we have found was erroneously excluded. Upon remand, of course, the trial court will consider the Delaeruz testimony in deciding this matter.

11842902

James L. DODSON, Appellant/Cross-Appellee, v. Robin L. DODSON, Appellee/Cross-Appellant

Dodson v. Dodson

1998-03-27

Nos. S-7386, S-7416

902

916

955 P.2d 902

955

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

James L. DODSON, Appellant/Cross-Appellee, v. Robin L. DODSON, Appellee/Cross-Appellant.

James L. DODSON, Appellant/Cross-Appellee, v. Robin L. DODSON, Appellee/Cross-Appellant. Nos. S-7386, S-7416. Supreme Court of Alaska. March 27, 1998. R. Scott Taylor and Philip R. Volland, Rice, Volland, Taylor & Hensley, P.C., Anchorage, for Appellant/Cross-Appellee. Joseph W. Sheehan, Law Offices of Joseph W. Sheehan, Fairbanks, for Appellee/Cross-Appellant. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE, and BRYNER, JJ.

8057

48915

OPINION FABE, Justice. I. INTRODUCTION The issues in this appeal and cross-appeal relate to proceedings that ended Jim and Robin Dodson's marriage. Jim challenges several aspects of the superior court's property division as well as the superior court's decisions ordering him to sign a stock pledge agreement and to pay Robin reorientation alimony and attorney's fees. In her cross-appeal, Robin argues that the superior court erred in characterizing certain property as marital rather than as belonging to her separately. We reverse in part, remand in part, and affirm in part. II. FACTS AND PROCEEDINGS Jim and Robin Dodson were married on September 30, 1967, separated in September 1993, and divorced in October 1995. In an order dated September 11, 1995, Superior Court Judge Mary E. Greene divided the parties' marital assets and obligations. In addition, she ordered Jim to pay Robin reorientation alimony "continuing until the earlier of the sale of the [marital residence] or Ms. Dodson becoming employed full time for the Fairbanks North Star Borough School District (or comparable job)." In connection with the divorce proceeding, Judge Greene also awarded Robin approximately $55,000 in attorney's fees and directed Jim to execute a stock pledge agreement "as security for the payment, discharge, and indemnification" of the debts awarded to him during the property division. On appeal, Jim argues that the superior court erred in several ways when it divided the marital assets and obligations. He also asserts that the court erred in awarding to Robin $55,000 in attorney's fees and in requiring him to sign the stock pledge agreement. Robin cross-appeals, asserting that the superior court erred in characterizing certain stock as marital property rather than as her separate property. III. STANDARD OF REVIEW In general, we review factual findings under the clearly erroneous standard. See Barber v. Barber, 837 P.2d 714, 716 n. 2 (Alaska 1992). We review de novo the application of law to the relevant facts. See Fitzgerald v. Puddicombe, 918 P.2d 1017, 1019 (Alaska 1996). In property division cases, our goal is to determine whether the trial court abused the broad discretion given to it under AS 25.24.160(a)(4). See Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988). The division of property by the trial court is a three-step process. See Carstens v. Carstens, 867 P.2d 805, 810 (Alaska 1994). "Step one— determining what property is available for distribution — is reviewed under the abuse of discretion standard, although it may involve legal determinations to which this court applies its independent judgment." Moffitt, 749 P.2d at 346. The second step requires the superior court to place a value on the property. See Carstens, 867 P.2d at 810. This is a factual determination that we will reverse only if there is clear error. See Moffitt, 749 P.2d at 346. Finally, in step three the superior court allocates the available property in an equitable manner. See id. We review this allocation under the abuse of discretion standard. See id. We also employ the abuse of discretion standard when reviewing the superior court's award of alimony, see Myers v. Myers, 927 P.2d 326, 327 n. 1 (Alaska 1996), and attorney's fees. See Kowalski v. Kowalski 806 P.2d 1368, 1372 (Alaska 1991). Under the abuse of discretion standard, the trial court's decision will be overturned only if this court has "a definite and firm conviction that the judge made a mistake." City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska 1987). IV. DISCUSSION A. The Superior Court Erred in Requiring Jim to Pay Certain Promissory Notes Relating to the Fidelity Warehouse, Inc. and Denali Transportation Corp. Stock. The first issue in Jim's appeal and the primary issue in Robin's cross-appeal relates to certain stock in Fidelity Warehouse, Inc. (Fidelity) and Denali Transportation Corp. (DTC). The DTC and Fidelity stocks at issue in this case were at one time owned by a trust created by Robin's father, Sig Wold (the Wold Trust). The stocks' certificates reflect that Robin and Jim, acting as trustees for the Wold Trust, transferred the stock in November 1979 to "[Jim] or Robin." This transfer occurred before Sig Wold's death in 1983. Interestingly, the record contains two promissory notes, one for $12,400 and the other for $79,300, that purport to have been executed by Jim on the same days in November 1979 when the Wold Trust transferred the Fidelity and DTC stock to "[Jim] or Robin." At trial, Jim initially testified that the promissory notes were consideration for and executed contemporaneously with the 1979 Fidelity and DTC stock transfers. However, following a conversation with the attorney who handled the execution of the notes, Jim recanted his earlier statements and stated that he had executed the notes well after the 1979 transfers. On appeal, Jim asserts that, based upon the advice of his attorney, he backdated the notes to match the dates of the DTC and Fidelity stock transfers in order to characterize the transfers as sales so as to avoid federal gift taxes and penalties that might have otherwise applied. As for the DTC stock, the superior court found that in November 1979 Robin knowingly participated with Jim in transferring the stock from the Wold Trust to the Dodsons as individuals. Accordingly, the court characterized the 1979 stock transfer as being "in the nature of a gift" and concluded that the DTC stock was marital property. Nevertheless, the superior court determined that it would be inequitable for Jim to "have the benefit of joint ownership of the [DTC] stock" without having to pay the promissory note with which he purported to purchase the stock. Therefore, it ordered Jim to pay the $79,300 note associated with the DTC stock. By the time of the divorce, the Fidelity stock had been sold, and the proceeds had been consumed by the Dodson marriage. The superior court found that Robin knowingly signed the November 1979 document purporting to transfer the Fidelity stock from the Wold Trust to the Dodsons as individuals. Although the superior court did not explicitly find that this transfer was a gift, such a finding is implicit in the decision of the court for the court found that Robin had the same knowledge concerning the Fidelity transfer that she had with respect to the Denali transfer, and that both she and Jim regarded her inheritance through the trust as a joint asset. Nevertheless, the superior court characterized the $12,400 note relating to the Fidelity stock as Jim's separate obligation (and Robin's separate asset) and ordered Jim to pay it. 1. Jim's appeal On appeal, Jim argues that the superior court erred in ordering him to pay the $79,300 DTC note and the $12,400 Fidelity note. He contends that the superior court's decision to enforce the promissory notes relating to the DTC and Fidelity stock is inconsistent with the court's finding that Robin and Jim knowingly transferred the DTC and Fidelity stock in November 1979 from the Wold Trust to themselves as individuals. We agree. Once the superior court concluded that Robin and Jim knowingly participated in the November 1979 stock transfers, that it was the parties' intent to hold the stock jointly, and that the transfers were gifts from Robin to the marital estate, there was no theory under which the promissory notes would be enforceable. The promissory notes were executed well after the November 1979 stock transfers and were not consideration for the transfers. Robin concedes that neither the Fidelity nor DTC stock transfers occurred for consideration. She also agrees that she signed the certificates purporting to make the transfers. Nevertheless, she asserts that she did not intend Jim to acquire any personal interest in the stock. Instead, Robin contends that she "assumed that transfer of the [stock] from 'Sigurd Wold and Robin L. Dodson as trustees of Sigurd Wold Trust' to 'James L. Dodson, and Robin L. Dodson,' was necessary to put James' name on the stock, since he was recently appointed to act as a co-trustee in place of Sig." We "will generally accept the determination of witnesses' credibility that are made by the court as a trier of fact, since the court heard and observed the witnesses first hand." Demoski v. New, 737 P.2d 780, 784 (Alaska 1987). The superior court concluded that Robin's testimony about her intentions in authorizing the 1979 transfer was not "completely accurate." Specifically, it found that Robin "was fully aware that property from the Trust was being transferred to the Dodsons individually." It based its finding upon the plain language of the stock transfer documents and upon evidence that Robin had actively participated in managing trust and family finances. The superior court's findings are supported by the record. First, the stock transfer documents plainly indicate that Robin and Jim as co-trustees authorized the 1979 transfers. The absence of the title "trustee" or a similar term next to Jim's and Robin's names in the transferee portion of the documents is conspicuous and undermines Robin's position. Second, although Jim appears to have been primarily responsible for the family's financial affairs, record evidence of Robin's past participation in the Wold Trust's business affairs supports the superior court's conclusion that Robin would have been able to understand the nature of what she was signing. For example, the record supports the superior court's finding that Robin worked "extensively" with the attorney for the Wold Trust to transfer all of Sig Wold's assets to the trust or into joint ownership with right of survivorship with her. In light of the plain language of the transfer documents and evidence of Robin's past participation in the trust's affairs, we conclude that the superior court did not err when it found Robin to have been "fully aware" that she was authorizing transfer of the DTC and Fidelity stock from the Wold Trust to the Dodsons as individuals. Therefore, we reverse the superior court's decision to enforce the promissory notes against Jim as his separate debt and in favor of Robin as her separate property. 2. Robin's Cross-Appeal In her cross-appeal, Robin contends that the superior court erred in characterizing the DTC stock as a marital asset. She argues that the DTC stock is her separate property due to alleged fraud and breaches of fiduciary duty by Jim. We disagree. The superior court concluded that "there was no intent to defraud." Because the superior court did not err in finding that Robin knew what she was signing, see Part IV.A. 1, supra, it also did not err in concluding that she was not defrauded. As to potential breaches of fiduciary duty, Robin correctly points out that Jim's role as a trustee and as the personal representative of Sig Wold's estate made him a fiduciary. However, even if the 1979 transfer of the DTC stock was a breach of this duty, the superior court did not err in concluding that Robin cannot successfully complain about it. As the superior court notes, a beneficiary who consents to a breach of trust generally cannot maintain an action against the trustee who breached a fiduciary duty. See Austin W. Scott & William F. Fratcher, The Law of Trusts § 99.1, at 50 (4th ed. 1987) ("If the trustee-beneficiary does not consent to the breach of trust, he can hold the other trustees liable. If he does consent to the breach, he cannot himself complain of it_"). Because the superior court did not err in concluding that Robin knowingly consented to the November 1979 stock transfers, see Part IV.A.l, supra, we conclude that Robin may not now successfully complain that the transfer amounted to a breach of Jim's fiduciary duty. Robin also argues in her cross-appeal that the DTC stock is her separate property based upon the source of funds rule. "Under [the source of funds] approach, property is classified according to the classification of the funds used to purchase it: property acquired with separate funds is separate; property acquired with marital funds is marital. Property purchased on debt is classified according to the funds used to pay off the debt. Thus it is 'acquired' over time." Zi-min v. Zimin, 837 P.2d 118,122 n. 6 (Alaska 1992). We have specifically declined to adopt this rule: It is one thing to hold that use of the source of funds rule in limited circumstances is not an abuse of discretion; it would be quite a leap from Zimin to hold that it must be applied in a given set of circumstances as a matter of law. We are not satisfied that such a leap would be appropriate. Cox v. Cox, 882 P.2d 909, 915 (Alaska 1994). In this case, the superior court did not apply the source of funds rule. Based upon Cox, we hold that this was not an abuse of discretion. B. The Superior Court Erred in Valuing the Alaska Culinary Management, Inc. Debt. The second disputed issue in this case relates to a venture named Alaska Culinary Management, Inc. (ACM). In the 1980s, the Dodsons invested in ACM, which owned and operated a restaurant in Fairbanks called Clinkerdagger's. According to Jim, the Dodsons were majority investors. Robin emphasizes that she did not want to purchase a majority of ACM. Nevertheless, Robin signed a $400,000 note to Denali State Bank to facilitate the purchase, and she managed Clinkerdagger's for a period of time. The restaurant closed in 1994, leaving significant outstanding debts. These debts included approximately $368,000 of the original $400,000 note to Denali State Bank. During the divorce proceedings, Jim filed an affidavit in which he stated that the Clinkerdagger's building space was being rented for $2,000 per month, but that "[t]his amount does not cover the $4,000 per month owed to the bank." Subsequently, however, he responded to direct examination as follows: Q And then what about the — what was the 400,000-dollar note? A It's being serviced by the person that we have the building at Clinkerdaggers leased to, which is Alex — the last name slipped my mind. Q And you say he — is he presently leasing it from you? A Yes. Q And then — but where do his lease payments go? A They're paid directly to Denali State Bank. Q And what do those lease payments pay in addition to the bank loan, anything? A No. Q Who pays the lease payments owed to.... A Well, it's a triple-net lease. He pays that and the lease payments and the taxes. The superior court concluded that the parties owed Denali State Bank $368,000 and awarded the debt to Jim. It also awarded all of the ACM stock to Jim. Then, for purposes of calculating the value of Jim's portion of the property distribution, the court concluded that the combined value of the ACM stock and the Denali State Bank debt was zero. The court reached this conclusion "because of the facts that the debt is currently serviced by the rental, the court has no information regarding the assets of Alaska Culinary Management, and the court does not believe that it is likely that Mr. Dodson would pay the entire amount by himself." Jim challenges the superior court's conclusion. He correctly points out that "[b]oth parties testified that the ACM stock was of no value." Therefore, he focuses on the new tenant's payments and concludes that "[t]he trial court's determination that 'servicing the debt' zeroed-out the entire obligation finds no support in logic or in the record." Robin contends that Jim's testimony supports the superior court's conclusion. She also asserts that "[t]here is no evidence of record to support [Jim's] contention that he personally will pay the Denali State Bank debt of $368,000." We conclude that the superior court erred. There is insufficient evidence to justify the conclusion that Jim will have no liability on the Denali State Bank debt. On remand the court should determine what portion of this debt he will likely have to pay. In making this determination, the superior court is authorized to conduct supplementary evidentia-ry proceedings. C. The Superior Court Did Not Abuse Its Discretion in Discounting Jim's i01(k) Plan by a Projected Tax Liability. The next issue in this case involves Jim's 401(k) plan, which the parties agree had a market value at the time of trial equal to $88,500. The superior court awarded the entire plan to Robin. However, it discounted the value of the plan by $11,935 to account for tax consequences. The court's notation accompanying the tax discount reads: "assumption held w/no penalty, taxed at 31% marginal rate." To effectuate the allocation of the 401(k) plan, the court signed a Qualified Domestic Relations Order (QDRO). On appeal, Jim asserts that the court erred in calculating the value of the property equitably distributed to Robin because it reduced the value of the plan by a projected, "hypothetical" tax consequence. To support his position, Jim cites Ober-hansly v. Oberhansly, 798 P.2d 883 (Alaska 1990), Money v. Money, 852 P.2d 1158 (Alaska 1993), and Barnes v. Barnes, 820 P.2d 294 (Alaska 1991). These cases hold that a superior court is required to consider tax consequences relating to the distribution of a particular piece of property when there is proof of an "immediate and specific tax liability" that will result 'from the distribution. Barnes, 820 P.2d at 297; Oberhansly, 798 P.2d at 887; accord Money, 852 P.2d at 1163. The parties dispute whether there was evidence of an "immediate and specific tax liability." We need not determine whether such a tax liability is present in this case. Regardless of whether Robin's future tax liability was immediate and specific, we conclude that the superior court did not err. In a Virginia case, the trial court awarded the husband sixty-five percent of the value of the jointly owned marital residence. See Barnes v. Barnes, 16 Va.App. 98, 428 S.E.2d 294, 300 (1993). The court awarded a disproportionately large share to the husband because it ordered the husband to assume the entire liability for capital gains taxes that might arise from a future sale of the house. See id., 428 S.E.2d at 300 & n. 2. The Barnes court affirmed the unequal division of the value of the marital residence. See id. at 300. It reasoned that "by noting that the husband would bear the responsibility of the capital gains tax, [the trial court] did no more than recognize what the Internal Revenue Code would require of the husband should he later sell the property." Id. Therefore, it determined that the trial court did not err "by considering and noting that the tax law would require the husband to pay any future capital gains tax that may become due." Id. Similarly, we conclude that the superior court in this case did not abuse its discretion by recognizing that the transfer of the 401(k) plan to Robin shifted a tax liability to her. Although the precise magnitude of the tax liability may be unpredictable, the superior court did not err when it considered that Robin would have to pay deferred taxes on the 401(k) plan before she could use the plan's funds. Nor did the superior court abuse its discretion by assuming a thirty-one percent marginal tax rate. See Day v. Day, 40 Ohio App.3d 155, 532 N.E.2d 201, 206 (1988) (finding that future taxes on a Keogh plan were "too speculative to be ascertained at this time" but that the trial court "properly could apply the present tax rates in considering the tax consequences" because the rate used by the trial court was not "unreasonable, even if [it is] the highest applicable rate."). D. The Superior Court Erred in Classifying Credit Card Debt Incurred by Robin after Separation as Marital Debt. The next issue involves certain credit card debt incurred by Robin before the superior court entered temporary orders but after the parties' separation on September 26, 1993. The superior court stated: [PJrior to the time that the court entered temporary orders, substantial credit card debt was incurred by Ms. Dodson since she had no other way to support herself. The court concludes that this post-separation credit card [debt] is marital debt. Until the time of temporary orders, the parties had not ceased functioning as a separate economic unit. The court awarded the full amount of the debt to Robin in its calculation of Robin's share of the marital property. Jim relies upon Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992), and asserts that the superior court erred in characterizing the credit card debt as marital debt. We agree. In Ramsey, the parties physically separated in the summer of 1988, but the trial court concluded that due to the extensive commingling of finances, "the parties continued to function economically as a single unit until the summer of 1990." Ramsey, 834 P.2d at 808. Thus, the trial court divided the parties' marital assets as of May 11, 1990. See id. We held that the trial court's "economic unit finding" was clearly erroneous. Id. We noted that the parties' permanent separation in the summer of 1988 "represented 'a final separation that [was] intended to, and [did] in fact, lead to a divorce.' " Id. at 809 (alteration in original) (quoting Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986)). We also stated that Sandra Ramsey's "continuing economic dependence alone does not indicate the continuance of the marital economic unit." Id. In this ease, the superior court did not clearly indicate why it concluded that the Dodsons continued functioning as an economic unit until the time of temporary orders. It appears that the court based its economic unit finding upon its conclusion that between the parties' separation and the time of temporary orders, Robin "had no other way to support herself." However, Ramsey determines that a trial court may not permissibly conclude that parties continue to function economically as a marital unit after the date of permanent separation just because one of the parties is economically dependent upon the other. See Ramsey, 834 P.2d at 809. Therefore, we conclude that the superior court erred in characterizing the credit card debt as marital. E. The Superior Court Did Not Abuse Its Discretion in Awarding Reorientation Alimony. The next issue involves the superior court's award of reorientation alimony to Robin "in the amount of $1,000 per month beginning October 1, 1994, and continuing until the earlier of the sale of the Skyline house or Ms. Dodson becoming employed full time for the Fairbanks North Star Borough School District (or a comparable job)." Jim argues that we should vacate the alimony award because the property distribution adequately meets Robin's needs. We disagree. We have recognized that "[rjeorientation alimony is ordinarily appropriate only to the extent that marital property cannot be divided in a way that provides for the parties' needs." Davila v. Davila, 908 P.2d 1025, 1026 (Alaska 1995) (Davila II). Subject to the preference for property division, we have held that reorientation alimony is appropriate where one spouse will have to live on a dramatically reduced income. See Nothin v. Nothin, 921 P.2d 1109, 1112 (Alaska 1996). We have also approved an alimony award "to aid the plaintiff while she is preparing to enter the job market and to organize the considerable non-liquid and non-income producing property being distributed to her from the marital estate." Money v. Money, 852 P.2d 1158, 1163-64 (Alaska 1993). In this case, Robin will have to adjust to living on a teacher's salary after having been . supported by Jim, whose average annual salary was over $190,000. The property division in this case may not be adequate to support her while she waits for a teaching job to become available because most of Robin's marital and separate property appears to be neither liquid nor income-producing. Indeed, the superior court indicated that the parties possessed "little liquid property" and that the "only income-producing asset owned by the parties is the stock in the Denali Group." Therefore, based upon Nothin and Money, we conclude that the superior court did not abuse its discretion in deciding to award Robin alimony. Jim also asserts that the duration of the award is impermissibly indefinite. We disagree. We have recognized that reorientation alimony is essentially transitional in nature and "may properly be awarded only for relatively short periods of time." Davila v. Davila, 876 P.2d 1089, 1094 & n. 3 (Alaska 1994) (Davila I). For example, we have noted that reorientation alimony is appropriate to provide temporary support "pending the sale of marital property or to enable a spouse 'to get a job appropriate to the spouse's existing skills.' " Davila II, 908 P.2d at 1027 (quoting Davila I, 876 P.2d at 1094 n. 3). The superior court's alimony award closely tracks this language in Davila II. The alimony payments cease upon the earlier of the sale of the marital residence or Robin becoming employed as a school teacher. In addition, the record indicates that working as a school teacher would be appropriate to Robin's existing skills. Therefore, the superior court's reasons for awarding alimony in this case are precisely the reasons that we endorsed in Davila I and Davila II. Under these circumstances, the superior court did not abuse its discretion. F. The Superior Court Did Not Abuse Its Discretion in Dividing the Proceeds from the Sale of the Skyline Drive House. The parties agreed to sell the marital home on Skyline Drive. The superior court estimated the fair market value of the home to be $650,000, but it assumed "a worst case sale of $600,000" for purposes of equitably dividing the house. From that $600,000, the court subtracted the mortgage debt, the real estate commission on the sale, and two repair bills. Approximately $384,000 in net pro ceeds remained from the projected sale. The court awarded $250,000 of this amount to Robin and $134,000 to Jim. It ordered any amount in excess of $384,000 to be divided evenly between the parties. If the net proceeds were less than $384,000, Robin would receive sixty-five percent and Jim would receive thirty-five percent. Since the effective date of the superior court's Order for Interim Support, Jim has been making the mortgage payments on the house but Robin has had the exclusive right to live in it. Judge Greene's September 11 order continues this arrangement until the parties sell the house. On appeal, Jim argues that the superior court erred in dividing the marital property because it failed to give him credit for the post-separation mortgage payments on the marital residence. He contends that this credit should have taken the form of either an award of the fair market rental value of Robin's exclusive use of the residence or of a reimbursement for any post-separation mortgage payments he made or will make. As to those house payments made by Jim after separation but before entry of the decree of divorce, we recently rejected an argument similar to the one advanced by Jim. In Harrelson v. Harrelson, 932 P.2d 247, 253 (Alaska 1997), Larry Harrelson argued that the trial court erred in denying his motion to modify the divorce decree to give him credit for post-separation house payments. He asserted that his former wife's exclusive possession of the house "mandates that he be given credit." Id. Relying upon Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992), we held: "We have required that trial courts consider payments made to maintain marital property from post separation income when dividing marital property. We have not, however, held that the spouse who makes such payments must necessarily be given credit for them in the final property division." . The trial court explicitly addressed Larry's request for a credit for post-separation house payments. Given the parties' highly disparate incomes, the trial court did not abuse its discretion in denying the credit. Id. (citations and footnote omitted) (quoting Ramsey, 834 P.2d at 809). In this case, as in Harrelson, the trial court found that there was a considerable disparity between the incomes of the parties, observing that Mr. Dodson currently has monthly disposable income . of $1,472 minus an unknown amount for Jimmy's college expense[s]. After the home and the Widgeon sell, Mr. Dodson's disposable income [will be] in excess of $7,000. Ms. Dodson has an expected monthly income of $1,622. Her monthly expenses total $2,926 plus an unknown amount in attorney's bills. Thus, she has a monthly shortfall, not including attorney's fees, of $1,300. After the house sells, assuming that her rent and utilities will cost $1,300 per month, Ms. Dodson will have a monthly shortfall of in excess of $1,700. We cannot say that the superior court abused its discretion in denying Jim a credit for the payments he made to maintain the marital home prior to entry of the divorce decree. However, this case differs from Ramsey and Harrelson in one significant respect. Here, the superior court ordered Jim to continue making the house payments after the divorce was final and until the house could be sold. Because Jim was required to make these post-decree house payments out of his share of the property division, the payments can best be characterized as an award of spousal support to Robin. In fact, the superior court implicitly treated them as such, finding them to be "both just and necessary," as required by AS 25.24.160(a)(2). The superior court reasoned that if Ms. Dodson did not continue to live in the home pending sale, "chances are that it would be more difficult to sell." The court further found that Ms. Dodson "has no funds from which to make the payment for the house" while "Mr. Dodson has such funds, as is illustrated by the calculation [for spousal support]." Given the superior court's finding that Mr. Dodson's continued payment of the mortgage pending sale of the home was "just and necessary" to fairly allocate the economic effect of divorce, it was not an abuse of discretion to order this temporary payment. G. The Superior Court Erred in Requiring Jim to Purchase Life Insurance. The superior court ordered Jim "to maintain sufficient life insurance to pay the marital debt naming [Robin] as beneficiary to the extent of any marital debt for which she remains liable." Jim asserts that "[t]his order is an abuse of the trial court's discretion, to the extent that it requires Jim to purchase life insurance to cover all marital debts, including those that already have sufficient security to protect Robin from any actual financial exposure in the event of Jim's death." Jim's arguments focus on the mortgage on the marital residence, a $180,000 debt owed to Key Bank, and debt owed by Falcon Properties, a partnership owned in part by the Dodsons. The mortgage was to be paid out of the proceeds of the sale of the house, and Jim argues that "there is more than sufficient equity to protect the Dodsons from any personal liability." Jim also contends that the Key Bank debt, which was allocated entirely to him, is "adequately secured by the Widgeon aircraft." As for Falcon Properties, the superior court did not mention any specific Falcon Properties debt. However, the court equally divided the Dodsons' partnership interest so that Robin and Jim each would retain a twenty-five percent interest. These partnership interests may have made Robin and Jim each liable for twenty-five percent of Falcon Properties' debts. Jim contends that the partnership's debts are adequately secured. We conclude that the superior court erred in requiring Jim to purchase insurance for the entire amount of the Key Bank debt. Trial courts have discretion to require a party to provide security for a marital debt, whether by insurance or otherwise, to ensure that the party actually pays the marital debts allocated to him. See Brett R. Turner, Equitable Distribution of Property § 6.29, at 464-65 (2d ed.1994). Because the court cannot affect the rights of creditors, id. at 464, its allocation of the Key Bank debt to Jim is effective only if Jim has sufficient assets to hold Robin harmless from any liability imposed by Key Bank. The Widgeon aircraft, which secures the Key-Bank debt, will not necessarily be adequate to insulate Robin from all personal liability. Nevertheless, it provides adequate security for at least a portion of the Key Bank debt. On remand, the superior court may require Jim to purchase insurance to the extent that it finds that the Widgeon aircraft would not be reasonably likely to provide adequate security. Similarly, we conclude that the superior court erred in requiring Jim to purchase insurance for the entire amount of the mortgage debt. Although the proceeds from the sale of the house might well exceed the amount of the mortgage debt, those proceeds might be inadequate should, for example, the house have to be sold after foreclosure. On remand, the superior court may require Jim to purchase insurance to the extent that it finds that the proceeds from the sale of the house would not be reasonably likely to satisfy the mortgage debt. Finally, as for Falcon Properties, we conclude that the superior court erred to the extent that it evenly divided the debt, yet required Jim to purchase insurance to cover the Dodsons' entire share of the debt. The superior court. does not have discretion to order Jim to purchase insurance to cover portions of the marital debt allocated to Robin. H. The Superior Court Must Reexamine the Overall Propeiiy Division. The superior court divided the marital property unevenly. It allocated approximately $825,919 in marital property to Robin and approximately $710,254 in marital property to Jim. Jim asserts that the overall marital property division is inequitable. In particular, he contends that the real value of the marital property awarded to him is $342,-254 because the superior court should have included the full $368,000 value of the ACM debt (discussed in Part IV.B, supra). He also argues that the superior court should have accounted for the DTC and Fidelity promissory notes (discussed in Part IV.A, supra). Certainly, an uneven property division would be appropriate in this case. However, in light of our conclusions in Parts IV.A-G, supra, the superior court should reexamine the division of the marital property to ensure that the revised property division will be equitable. I. The Superior Court Must Reexamine the Attorney's Fees Award. The Order for Interim Support obligated Jim to pay $25,000 for Robin's attorney's fees and costs. Upon motion after trial, the court also ordered Jim to pay Robin an additional $30,000 in attorney's fees. The court awarded these fees after determining that Robin did not have "economic parity" with Jim and that Jim had "a substantial income in excess of $160,000 per year." On appeal, Jim argues that he cannot afford to pay $55,000 for Robin's attorney's fees and that Robin has sufficient assets to pay her own legal fees. We have repeatedly -stated that cost and attorney's fees awards in divorce cases are to be based primarily upon the relative economic situations and earning capacities of the parties. See Kelly v. Kelly, 926 P.2d 1168, 1170 n. 3 (Alaska 1996). If the parties have comparable economic situations and earning capacities, each party should bear his or her own costs. See Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991). Otherwise, an award of attorney's fees is within the discretion of the trial court. See id. We have reversed attorney's fees awards where the spouse receiving the award has a higher earning capacity, see, e.g., Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1189, 1192-93 (Alaska 1987); Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 1982), or where the recipient spouse is in a relatively more favorable economic situation, even though that spouse's earning capacity is lower. See Cooke v. Cooke, 625 P.2d 291, 292-93 (Alaska 1981) (per curiam). In this case, Jim has a significantly higher earning capacity than Robin. However, our conclusions in Parts IV.A-H, supra, may significantly impact the parties' financial situations. Therefore, on remand the superior court should reexamine the attorney's fees award to determine whether it is appropriate in light of our rulings in this case. V. CONCLUSION We REVERSE the superior court's decision to enforce the promissory notes. We REVERSE and REMAND the valuation of the ACM debt, the classification of Robin's post-separation credit card debt as marital, and the superior court's decision to require Jim to purchase life insurance to cover all of the marital debts for which Robin remains liable. We also REMAND the overall property division, the attorney's fees award, and the superior court's decision to require Jim to sign the stock pledge agreement. We AFFIRM the superior court's decision to discount the award of the 401(k) plan, to award reorientation alimony, and its division of the proceeds from the sale of the marital residence. . All child custody issues were resolved in a bifurcated proceeding. . Originally, the Wold Trust named Sig Wold and Robin as trustees. However, Sig Wold amended the trust in 1977 to substitute Jim as co-trustee in place of himself. . The amounts of these promissory notes reflect appraised values of the DTC and Fidelity shares. The DTC stock was valued at $79,300 while the Fidelity shares were appraised at $12,400. . Record evidence indicates that the notes were executed in 1981. The amounts of the promissory notes were based upon appraisals performed by tax attorney Richard Staeheli. Stacheli did not begin advising the Dodsons until April 1981. Moreover, the text of the Fidelity appraisal states: Prior to this detailed analysis, it is most important to clearly understand economic conditions existing in 1979.... The North Slope Pipe Line construction had recently been completed.... The general economic downturn which the rest of the nation . was just beginning to experience (and which continues unabated into 1981), had already begun in earnest in Alaska. (Emphasis added.) . As noted above, the stock certificates actually purport to transfer the DTC and Fidelity stock in November 1979 to Jim "or" Robin. . Specifically, the record indicates that Robin handled all of Sig Wold's bills. It also contains several letters from Sig Wold's lawyer to Robin advising her about how to proceed in organizing Sig Wold's assets in the Wold Trust. .Because we agree with Jim that the superior court's decision to enforce the promissory notes is inconsistent with the court's finding that Robin and Jim knowingly transferred the DTC and Fidelity stock in November 1979 from the Wold Trust as gifts to themselves as individuals, we do not reach Jim's other arguments for reversing the superior court's decision to enforce the promissory notes. . This same analysis applies to Jim's fiduciary duty as the personal representative of Sig Wold's estate. See Gudschinsky v. Hartill, 815 P.2d 851, 853 n. 7 (Alaska 1991) ("[T]he personal representative is liable to interested persons for damage or loss resulting from the breach of fiduciary duty to the same extent as a trustee of an express trust."). . She testified: "I didn't think maybe eight percent would be bad like everybody else was doing, but I absolutely did not want to do 51 percent." .We note, however, that a superior court might abuse its discretion by considering tax consequences for divorcing spouses in an inconsistent manner. For example, the court might abuse its discretion by awarding a 401 (k) plan to one spouse and an Individual Retirement Account to the other spouse if it considers the tax consequences associated with the 401 (k) plan only. In this case, the superior court did not consider tax consequences in an inconsistent manner. . The amount of the debt was approximately $10,800. Approximately $6,800 was attributable to an MBNA Mastercard. The remaining $4,000 was attributable to an Alaska Bankcard Center credit card. . Although we conclude that the superior court erred in characterizing the credit card debt as marital based upon the economic dependence of Robin, the court may address Robin's economic dependence by adjusting the overall property division. See AS 25.24.160(a)(4). . Robin worked as a teacher from 1970 through 1974. After 1974 she did not work for pay, although she managed at various times a toy store and a restaurant in which the Dodsons had invested. Between July 1993 and the time of trial, Robin renewed her teacher's certificate. . Jim argues that the alimony award provides Robin "no incentive to facilitate the sale of the [marital residence]." He suggests that Robin might interfere with the sale of the house so that she can continue to receive alimony and rent-free accommodations. In context, however, it seems clear that the superior court envisioned an alimony award of relatively brief duration. Furthermore, the superior court's decision implicitly requires Robin to act in good faith. .The mortgage amounted to $191,712, and the real estate commission was $18,000. The two repair bills consisted of a $4,920 bill owed to a repairperson and $1,381 paid by Robin to repair a well pump. . The record is not clear whether Jim made the mortgage payments between the time of separation and the date of the Order for Interim Support. . Notwithstanding the discretion afforded trial courts by Harrelson and Ramsey, Jim urges us to conclude as a matter of law that the superior court must give him credit for his post-separation payments and for Robin's exclusive use of the residence. He asserts that Wood v. Collins, 812 P.2d 951 (Alaska 1991), entitles him to such compensation. Specifically, he notes that this court has stated: "We held in Wood that where the use of marital property after separation effectively excludes the other spouse, the rules of cotenancy require payment to the marital estate of the fair market rental value for use of the property." Rodriguez v. Rodriguez, 908 P.2d 1007, 1012 (Alaska 1995). This portion of Rodriguez mischaracterizes Wood. Wood did not involve marital property because the parties were not married. Instead, the parties lived together in a "twelve-year intimate, yet non-matrimonial, relationship." Wood, 812 P.2d at 952-53. Following the parties' "separation," Wood moved into a condominium that the parties had purchased while they were living together. See id. We concluded that the rules of cotenancy applied and noted that a cotenant is liable for the reasonable value of her use of property where that cotenant's use of the property "in fact excludes the other cotenant's use and enjoyment of it," Id. Wood does not require a trial court to apply these rules of cotenancy to married parties seeking a divorce. . The dissent suggests that even if Jim's house payments are appropriately viewed as spousal support, Jim should be reimbursed for at least that portion of the house payment that is applied to principal. However, because Jim's payments have been characterized as spousal support that is "just and necessary" to fairly allocate the economic impact of the divorce, reimbursement of those payments is not required under our case law. If the superior court had structured its award of spousal support in a more traditional manner, requiring Robin to make the monthly house payment but providing for a commensurate increase in Jim's spousal support obligation, Jim would not, as a matter of law, have been entitled to a credit for payments to principal. When spousal support is "just and necessary," there is no requirement that the recipient reimburse the payor to "restore]] the status quo as of the time of the decree." Diss. at-. In lieu of reimbursement for his spousal support payments, Jim will be entitled to a corresponding tax deduction. . We have noted that "[w]hen a couple has sufficient assets, the spouse with the smaller earning capacity can and should receive a larger share in the property distribution." Dixon v. Dixon, 747 P.2d 1169, 1173 (Alaska 1987). In this case, Jim's earning capacity appears to be substantially greater than Robin's. . According to the superior court, Jim earns approximately $160,000 per year. At the time of trial, Robin was unemployed and hoped to find a teaching position, which might pay approximately $40,000 yearly. . The final issue relates to a stock pledge agreement that the superior court required Jim to sign. The agreement requires Jim to pledge his interest in certain stock referred to as the "Denali Group Stock" "as security for the payment, discharge, and indemnification" of the DTC and Fidelity promissory notes, the ACM debt, a $22,-000 debt owed to Hub Foods, and a $7,000 loan from Denali State Bank. On appeal, Jim argues that the debts allocated to him by the superior court and secured by the pledge agreement are so large in relation to his income that the pledge agreement virtually guaranteed that he would lose his interest in the Denali Group Stock. Thus, because his interest in that stock was one of the most valuable assets he received in the divorce proceedings, he asserts that the superior court erred in ordering him to sign the pledge agreement because it "effectively undermined [the superior court's] entire property distribution." This argument appears to hinge upon a conclusion that the overall property division unreasonably burdens Jim (see Part IV.H, supra). Therefore, when the superior court reexamines the overall property division pursuant to Part IV.H, supra, it will avoid the harm alleged by Jim if it successfully divides the parties' debts and assets in an equitable fashion. On remand, the superi- or court should determine whether the stock pledge agreement unreasonably burdens Jim in light of the revised property division.

10312834

Harvey PULLEN and United Fishermen of Alaska, Inc., Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, Fairness in Salmon Harvest, Inc., Appellees

Pullen v. Ulmer

1996-08-26

No. S-7642

54

66

923 P.2d 54

923

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Harvey PULLEN and United Fishermen of Alaska, Inc., Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, Fairness in Salmon Harvest, Inc., Appellees.

Harvey PULLEN and United Fishermen of Alaska, Inc., Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, Fairness in Salmon Harvest, Inc., Appellees. No. S-7642. Supreme Court of Alaska. Aug. 26, 1996. Arthur S. Robinson, Robinson, Beiswenger & Ehrhardt, Soldotna, for Appellants. Avrum M. Gross and Susan A. Burke, Gross & Burke, Juneau, for Appellee Fairness in Salmon Harvest, Inc. Sarah J. Felix-, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee Fran Ulmer. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

8005

51102

OPINION RABINOWITZ, Justice. I. INTRODUCTION Pullen and United Fishermen of Alaska, Inc. challenge an initiative designed to set priorities among different salmon harvest users. II. FACTS AND PROCEEDINGS In August of 1995, Appellee Fairness in Salmon Harvest, Inc. (F.I.S.H.) submitted an initiative application to the state. The proposed initiative provided that subsistence, personal use, and sport fisheries would receive a preference to take a portion of the salmon harvest before the remaining harvest-able salmon are allocated to other harvest users. The proposed initiative also sets a limit on the amount to be allocated to personal use and sport fisheries of five percent of the total projected statewide salmon harvest, though this limit may be exceeded for any particular species or region. The F.I.S.H. initiative, entitled "An Act Relating to the Management of Salmon" reads in full: BE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA "An Act relating to the management of salmon" Sec. 1. PURPOSE (a) This act provides that, after maintenance of salmon stocks at sustained yield levels is assured, subsistence, personal use, and sport fisheries shall receive a preference to take a portion of the harvestable surplus of salmon stocks. Subsistence, personal use, and sport fisheries must be ensured of a reasonable opportunity to take enough salmon necessary to satisfy the harvest needs of those fisheries before other fisheries may be allocated the remaining portion of the harvestable surplus. (b) This Act does not alter existing or establish new allocations or preferences among subsistence, personal use, and sport fisheries. (c) This Act does not give additional authority to the Board of Fisheries or the Department of Fish and Game, but relies upon the existence of their respective authorities to implement this Act. Sec. 2. AS 16.05 is amended by adding a new section to article 5 to read: Sec. 16.05.735 MANAGEMENT OF ALASKA SALMON STOCKS, (a) After providing for biological escapement needs of Alaska salmon stocks, the Board of Fisheries and the department shall exercise their respective authorities under this title to reserve a priority for the harvest needs of common consumptive uses for each salmon stock, to the extent that is technically possible, prior to allocating a portion of the harvestable surplus to non-priority uses along the entire migratory path of a stock. The total number of salmon, without regard to the species of salmon, reserved to satisfy the harvest needs of personal use and sport fisheries may not exceed five percent of the total projected statewide harvest of all species of salmon. Personal use and sport fisheries may harvest in excess of five percent of a particular species or stock and or in excess of five percent of the total harvest in a given geographic region of the state. However, the harvest priority for personal use and sport fisheries may not exceed five percent of the total projected statewide harvest. (b) All harvests shall be made in a habitat responsible manner. The Board shall adopt regulations establishing methods and means of taking salmon that protects salmon spawning and rearing habitat from damage that will, individually or cumulatively, result in significant reduction in the productivity of salmon stocks. (e) In this section, (1) "common consumptive use" means the use of salmon harvested under subsistence, personal use, or sport fishing regulations or statutes; (2) "harvest needs" means the harvest capability, using bag limits as established by the Board and the department of all common consumptive uses based upon projected participation, and assuming a harvesta-ble surplus of salmon exists after ensuring an adequate biological escapement; (8) "salmon" means Coho, Chinook, Sockeye, Pink, and Chum salmon that originate in or will return to spawn in Alaskan waters; salmon does not include Steelhead or other anadromous fish; (4) "stock" means a population or aggregation of a particular species that typically possess common characteristics such as area of origin, migration patterns, run timing, habitat, and share in a common gene pool; (5) "statewide salmon harvest" means the total projected annual harvest, in numbers of fish caught, of all combined species of salmon. Lieutenant Governor Fran Ulmer certified the proposed initiative. The initiative sponsors then circulated the petition among voters and obtained enough signatures to place the proposed initiative on the 1996 general election ballot. Thereafter, the Division of Elections verified that the petition had the required number of signatures, and directed that the Department of Law prepare the ballot accordingly. On November 7, 1995, appellants Harvey Pullen and United Fishermen of Alaska (Pul-len) filed suit for declaratory and injunctive relief challenging, on several grounds, the Lieutenant Governor's certification of the initiative. More particularly, Pullen asserted that (1) the proposed bill is not a proper subject of an initiative because it would make an appropriation of the State of Alaska's salmon resources, (2) the allocation of salmon resources of the state among common users is exclusively the responsibility of the legislature, (3) the Lieutenant Governor's impartial summary explaining the proposed bill is misleading as to its terms and effects, and (4) the proposed classification of common users of the state's salmon resource is underinclu-sive and unfair because the initiative denies commercial fishers equal treatment and protection, a violation of the Uniform Applica tion clause in article VIII, section 17 of the Alaska Constitution. By way of relief, Pul-len sought a declaration of unconstitutionality and an injunction prohibiting the Lieutenant Governor from placing the initiative on the November 1996 general election ballot. Thereafter, Pullen moved for summary judgment, with all parties agreeing that no genuine issues of material fact existed. Pul-len grounded his summary judgment motion on the contention that the proposed initiative is not a proper subject for an initiative and is in violation of articles VIII, XI, and XII of the Alaska Constitution as well as AS 16.45.010. In opposition, the Lieutenant Governor argued that the proposed bill is a proper subject for an initiative because it merely creates a new priority system for the allocation of salmon resources among groups of fishers, that the allocation of salmon is not within the exclusive law-making power of the legislature, and that it does not make an appropriation by the state. F.I.S.H. in turn contended that salmon in their natural state are not property subject to appropriation. F.I.S.H. further argued, in the alternative, that if salmon are considered state property subject to appropriation, the initiative does not make an appropriation of salmon. The superior court denied Pullen's motion for summary judgment, and entered final judgment, for Lieutenant Governor Ulmer and F.I.S.H. In granting summary judgment, the superior court ruled that salmon are -public assets of the state which may not be appropriated by initiative; that neither the Alaska Constitutional Convention Minutes nor article XII, section 11 of the Alaska Constitution support Pullen's assertion that the Public Trust doctrine prohibits establishing a new priority of the state's natural resources directly through the initiative process; and that the initiative does not make an appropriation of state assets. III. STANDARD OF REVIEW The parties agree that there are no genuine issues of material fact in dispute. The appeal primarily concerns only questions of the constitutionality of the proposed initiative. These are questions of law. In regard to questions of law, we apply our independent judgment. Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991). Regarding questions of law, this court adopts the rule of law that is most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). Concerning the applicable standard of review in matters involving initiatives, we have said that the usual rule is "to construe voter initiatives broadly so as to preserve them whenever possible. However, initiatives touching upon the allocation of public revenues and assets require careful consideration because the constitutional right of direct legislation is limited by the Alaska Constitution." Fairbanks v. Convention & Visitors Bureau, 818 P.2d 1153, 1155 (Alaska 1991) (citation omitted). IV. DISCUSSION Pullen's appeal from ¾; superior court's decision on summary judgment raises two issues. First, Pullen argues that management of Alaska's salmon resources falls exclusively within the power of the state legislature as trustee of Alaska's wildlife, and therefore is not a proper subject of an initiative. Second, Pullen contends that the proposed initiative makes an appropriation of state property, in violation of article XI, section 7 of the Alaska Constitution. We address this latter contention first. A The Initiative as an Appropriation 1. Can wildlife be characterized as state property subject to appropriation? Article XI, section 7 of the Alaska Constitution provides in part that "[t]he initiative shall not be used to . make or repeal appropriations.... " In Thomas v. Rosen, 569 P.2d 793, 796 (Alaska 1977), we endorsed the following definition of "appropriations": the setting aside from the public revenue of a certain sum of money for specific objects in such a manner that the executive officers of the government are authorized to use that money, and no more for that object, and no other. Two subsequent decisions of this court have held that the term "appropriations" as used in article XI, section 7 embraces not only appropriations of money but initiatives that propose to "give away" any public asset, including land. In Thomas v. Bailey, 595 P.2d 1 (Alaska 1979), we held that an appropriation of state land to the general public was just as much an appropriation as a disposition of money from the treasury. Specifically, we said, "The stated purpose and effect of the Initiative on the state treasury is still an expenditure of state assets in the form of public lands." Id. at 9. Subsequently, in regard to an initiative that would have re quired the Municipality of Anchorage to sell a utility to a private non-profit organization for one dollar, we said: We noted [in Thomas v. Bailey ] that the constitutional convention delegates "wanted to prohibit the initiative process from being used to enact give-away programs, which would have inherent popular appeal, that would endanger the state treasury." . We conclude that the logic of Bailey also applies in the instant appeal. The prohibition against appropriation by initiative applies to all state and municipal assets. Alaska Conservative Political Action Committee v. Municipality of Anchorage, 745 P.2d 936, 938 (Alaska 1987) (citation and footnote omitted). It is against this decisional background that F.I.S.H. argues that wildlife is not truly an asset of the state. F.I.S.H. argues that state ownership of wildlife is merely a legal fiction, and should not be applied in the context of deciding whether wildlife is an asset of the state which is subject to appropriation. F.I.S.H. cites several United States Supreme Court cases in support of its position that a state does not literally own the wildlife found within its borders. More particularly, F.I.S.H. concludes that "[a]s a matter of simple common sense, it should be obvious that whatever the Constitution says about fish and game 'belonging to the state,' salmon or moose or other wild creatures are-not state assets in the same way that money or buildings are assets." (Footnote omitted.) We agree that this facet of F.I.S.H.'s argument is well established — the state does not own wildlife in precisely the same way that it owns ordinary property. However, this does not answer the question of whether the state's interest in wildlife is such that it can be appropriately characterized as state property subject to appropriation. F.I.S.H. asks, "If the moose population plunges due to a sudden increase in the wolf population, does the state have an obligation to notify Moody's so that its bond rating may be adjusted?" F.I.S.H. assumes that the answer is "No," reasoning that these kinds of harms cannot affect the financial health of the state. We think this assumed answer is wrong. In fact, a precipitous decline in the moose population may not, on its own, be enough to greatly affect the state's bond rating, but the effect on the state would be as significant as the loss of any other asset. Moose are valuable assets to Alaska, helping in attracting tourists, for example. Furthermore, if other wildlife populations also plummeted, the state's finances would obviously be affected as one of the primaiy tourism attractors disappeared. Finally, if the state's salmon population precipitously declines, the fishing industry would be devastated, causing even more harm to Alaska's economy and revenue base. The state benefits from the harvest of salmon through the collection of taxes imposed on business enterprises engaged in the fishery and license fees imposed on sport, personal use, and commercial fisheries. Insofar as loss, use, or exploitation of wildlife directly affects Alaska's fish, it is a state "asset." The fact that other aspects of ownership may not be present in the state's legal relationship to its wildlife does not change this conclusion. We reach this holding for the following additional reasons. First, examination of the relevant provisions of the Natural Resources Article of the Alaska Constitution clearly indicates the importance of the state's interest in fish. Article VIII, section 2 of the Alaska Constitution provides: General Authority. The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for maximum benefit of its people. Article VIII, section 3 provides: Common Use. Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use. Article VIII, section 4 provides: Sustained Yield. Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses. In Owsichek v. State, Guide Licensing, 763 P.2d 488 (Alaska 1988), we had occasion to analyze the common use clause found in article VIII, section 3 of Alaska's Constitution. After noting that the framers of our constitution apparently intended to constitutionalize historic common law principles governing the sovereign's authority over management of fish, wildlife, and water resources, we said: Thus, common law principles incorporated in the common use clause impose upon the state a trust duty to manage the fish, wildlife and water resources of the state for the benefit of all the people. We have twice recognized this duty in our prior decisions. In Metlakatla Indian Community, Annette Island Reserve v. Egan, 362 P.2d 901, 916 (Alaska 1961) aff'd 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962), we stated: These migrating schools of fish, while in inland waters, are the property of the state, held in trust for the benefit of all the people of the state, and the obligation and authority to equitably and wisely regulate the harvest is that of the state. (Emphasis added.) Similarly, in Herscher v. State, Department of Commerce, 568 P.2d 996,1003 (Alaska 1977), we noted that the state acts "as trustee of the natural resources for the benefit of its citizens." Id. at 495. In a footnote to this text, we stated: The Court overruled Geer's state ownership doctrine in Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). That case involved facts almost identical to Geer: the Oklahoma statute at issue forbade the export of minnows taken from the waters of the state. See id. at 323, 99 S.Ct. at 1729, 60 L.Ed.2d at 254.' The Court struck down the statute as vio-lative of the commerce clause. Id. at 338, 99 S.Ct. at 1737, 60 L.Ed.2d at 263. The Court found the state ownership doctrine to be a legal fiction that created anomalies and did not conform to "practical realities." Id. at 335, 99 S.Ct. at 1735, 60 L.Ed.2d at 261. Nothing in the opinion, however, indicated any retreat from the state's public trust duty discussed in Geer. Indeed, the Court stated, "[T]he general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th century legal fiction of state ownership." Id. at 335-36, 99 S.Ct. at 1735-36, 60 L.Ed.2d at 261. After Hughes, the statements in the Alaska Constitutional Convention regarding sovereign ownership, quoted supra, are technically incorrect. Nevertheless, the trust responsibility that accompanied state ownership remains. Id. at 495 n. 12. These important themes have been consistently reaffirmed. See Gilbert v. State, Dep't of Fish and Game, 803 P.2d 391, 399 (Alaska 1990); Shepherd v. State, Dep't of Fish and Game, 897 P.2d 33, 40 (Alaska 1995). Given the above, we think there is merit in Pullen's contention that the public trust responsibilities imposed on the state by the provisions of article VIII of our constitution compel the conclusion that fish occurring in their natural state are property of the state for purposes of carrying out its trust respon sibilities. In short, we are in agreement with Pullen's position that [i]t is the authority to control naturally occurring fish which gives the state property-like interests in these resources. For that reason, naturally occurring salmon are, like other state natural resources, state assets belonging to the state which controls them for the benefit of all of its people. We hold that the state's interest in salmon migrating in state and inland waters is sufficiently strong to warrant characterizing such salmon as assets of the state which may not be appropriated by initiative. Thus we conclude that the superior court correctly reasoned that salmon are public assets of the state which may not be appropriated by initiative. 2. Does the initiative constitute an appropriation? Article XI, section 7 of the Alaska Constitution states in part: The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts or prescribe their rules, or enact local or special legislation. On four previous occasions we have construed the appropriations limitation on the initiative power. Thomas v. Bailey, 595 P.2d 1 (Alaska 1979), presented in the context of a land giveaway initiative, the issue of whether the prohibition on making appropriations included initiatives which required the outflow of land, or was limited to the outflow of money. Bailey established that not only money, but also other state assets could be the subject of appropriations, and therefore that the initiative was prohibited. In reaching this holding we observed that "[tjhough most state constitutions with referendum and initiative provisions have some limitation relating to appropriation, Alaska's appropriation limitation is worded more generally than that of most other states." Id. at 4. Of particular significance is the emphasis given in Bailey on the dangers associated with direct legislation relating to appropriations. The restrictions on permissible subjects for direct legislation represent "a recognition . that certain particularly sensitive or sophisticated areas of legislation should not be exposed to emotional electoral dialogue and impulsive enactment by the general public." Stewart, The Law of Initiative Referendum in Massachusetts, 12 N. Engd. L.Rev. 455, 461 (1977) (footnote omitted). The danger with direct legislation relating to appropriations is that it "tempt[s] the voter to [prefer] . his immediate financial welfare at the expense of vital government activities." Note, Referendum: The Appropriations Exception in Nebraska, 54 Neb. L.Rev. 393, 394 (1975). Cf. Brown v. Ward, 593 P.2d 247 (Alaska 1979). The lure of an immediate grant of land poses the same temptation as an immediate grant of money. Both decisions are the kind that require the reasoned deliberation characteristic of legislative actions. Id. at 8. The prohibition against using an initiative to make an appropriation next arose in Alaska Conservative Political Action Committee v. Municipality of Anchorage, 745 P.2d 936 (Alaska 1987). There we concluded that the logic of Bailey controlled and that "[t]he prohibition against appropriations by initiative applies to all state and municipal assets." Id. at 988. We further stated: A utility with $32.7 million equity is a significant municipal asset. The initiative would require the Municipality to transfer it for the nominal sum of one dollar. This is precisely the kind of "rash, discriminatory, and irresponsible aet[ ]" against which the state and its subdivisions are protected under Article XI, section 7. Id. The issue arose again in McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988). In McAlpine, an initiative was proposed reestablishing the community college system in the state. This part of the initiative was not held to violate the prohibition on appropriations. However, the initiative also provided for the transfer of certain property of the University of Alaska to the Community College System: The University of Alaska shall transfer to the Community College system of Alaska such real and personal property as is necessary to the independent operation and maintenance of the Community College System. The amount of property transferred shall be commensurate with that occupied and operated by the Community Colleges on November 1,1989. Id. at 83. Again drawing on Bailey, we said in McAlpine: Parallel reasoning applies in the present case. Outside the context of give-away programs, the more typical appropriation involves committing certain public assets to a particular purpose. The reason for prohibiting appropriations by initiative is to ensure that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs. This rationale applies as much or nearly as much to allocations of physical property as to allocations of money. To whatever extent it is desirable for the legislature to have sole responsibility for allocating the use of state money, it is also desirable for the legislature to have the same responsibility for allocating property other than money. Otherwise, the prohibition against appropriations by initiative could be circumvented by initiatives changing the function of assets the State already owns. We conclude that the constitutional prohibition against appropriations by initiative applies to appropriations of state assets, regardless of whether the initiative would enact a giveaway program or simply designate the use of the assets. Id. at 88, 89 (first emphasis in original, second emphasis added, footnote omitted). We then went on to hold that the second sentence of the initiative constituted an impermissible appropriation. Most recently, we upheld a challenged initiative in City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153 (Alaska 1991). In that case, the initiative in question repealed a city code section which designated bed tax revenues for purposes of tourist and entertainment facilities and other economic development. The initiative also set aside the bed tax revenues for deposit in the city council discretionary fund. We held that the placing of revenues in the discretionary fund was not an appropriation. The test we applied was "whether the initiative would set aside a certain specified amount of money or property for a specific purpose or object in such a manner that it is executable, mandatory, and reasonably definite with no further legislative action." Id. at 1157. In concluding that the initiative was not violative of the prohibition against making appropriations, we observed: A reference to the dual purposes behind the prohibition of initiatives which make appropriations is instructive. First, the initiative is not a give-away program. No particular group or person or entity is targeted to receive state money or property, nor is there any indication that by passing this initiative, the voters would be voting themselves money. Second, this initiative does not reduce the council's control over the appropriations process. Instead, the initiative allows the council greater discretion in appropriating funds than does the current law. It is axiomatic that if FGCO 5.402 does not make an appropriation, then the initiative, which affords greater legislative discretion and is not a give-away program, cannot make an appropriation. Id. at 1157. From these decisions two core objectives of the constitutional prohibition on the use of initiatives to make appropriations can be distilled. First, the prohibition was meant to prevent an electoral majority from bestowing state assets on itself. Second, the prohibition was designed to preserve to the legislature the power to make decisions concerning the allocation of state assets. In light of these objectives, we now address the question of whether the proposed initiative violates article XI, section 7 of the Alaska Constitution as well as AS 15.45.010. We answer this question in the affirmative. Our interpretation of the proposed initiative leads us to the conclusion that the initiative, if enacted, would violate the basic, purposes underlying Alaska's constitutional restriction against making appropriations by initiative. First, it is clear that the proposed initiative is designed to appeal to the self-interests of sport, personal and subsistence fishers, in that these groups are specifically targeted to receive state assets in the circumstance of harvestable shortages. In short, it "tempt[s] the voter to [prefer] . his immediate financial welfare at the expense of vital government activities." Bailey, 595 P.2d at 8. Second, the initiative significantly reduces the legislature's and Board of Fisheries' control of and discretion over allocation decisions, particularly in the event of stock-specific or region-specific shortages of salmon between the competing needs of users. See McAlpine, 762 P.2d at 88-89. ("The reason for prohibiting appropriations by initiative is to ensure that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs. This rationale applies as much or nearly as much to allocations of physical property as to allocations of money.") The overriding purpose of the proposed initiative is to require the Board of Fisheries, after providing for the biological escapement needs of Alaska's salmon stocks, to reserve a priority for the harvest needs for each particular salmon stock of personal use, sport, and subsistence fisheries prior to allocating any portion of the harvestable surplus to corn- mercial fisheries. The State comes close to conceding that if the proposed initiative is approved by the electorate it could result in the closure of some commercial fisheries. In this regard, the State notes: Pink salmon, and to some respects sockeye salmon, are the largest producers in numbers of fish.... However, most of the sport fishermen in Southeast and the A-YK regions target kings and cohos.... Since the priority is stock directed and allocation is not, one could argue that the initiative requires allocations of kings and cohos to sport and personal users in these regions. If so, this arguably requires closing some commercial fisheries also targeting kings and cohos. (Emphasis added, citations omitted.) We cannot interpret the proposed initiative as simply amending "a series of general legislative criteria to add more specific ones to guide the Board of Fisheries in its future allocation decisions" as F.I.S.H. contends. We think it is clear that the proposed initiative calls for an actual allocation, in the event of a shortage of a given salmon species in a given geographical region, to sport, personal use, and subsistence fisheries. In such circumstances there exists the very real possibility that the commercial fishers will be excluded from such fisheries. Thus, the initiative cannot be viewed as merely protecting the relative positions of sport, personal use, and subsistence fisheries as against commercial fisheries. Nor can this initiative be construed as not impinging upon the legislature's and Board of Fisheries' discretion to make allocation decisions among the competing needs of users. See McAlpine, 762 P.2d at 89, 91. The proposed initiative does not purport to maintain the existing relative positions between sport, personal use, and commercial fisheries. Further, the proposed initiative does remove the Board of Fisheries' discretion to make allocation decisions in times of shortages, and there is a very realistic danger that such shortages will occur. For these reasons, we hold that the F.I.S.H. initiative violates article XI, section 7 of the Alaska Constitution, as well as AS 15.45.010. V. CONCLUSION The judgment of the superior court is REVERSED insofar as it holds that the proposed F.I.S.H. initiative does not make an appropriation of state assets in violation of the provisions of article XI, section 7 of the Alaska Constitution. The case is REMANDED to the superior court with directions to amend its judgment to provide that the Lieutenant Governor is permanently enjoined from placing the proposed F.I.S.H. initiative on the 1996 general election ballot. . Pullen notes that "[t]he application was filed by Alaskans who believed that the Alaska Board of Fisheries was, in some circumstances, allocating an unreasonable portion of salmon to commercial fisheries at the expense of personal consumptive uses." . The Lieutenant Governor is charged with reviewing initiative applications for compliance with AS 15.45.010-.080. Upon request from the Lieutenant Governor, the Attorney General's Office reviewed the proposed initiative as to whether it was in proper form under applicable state constitutional provisions and statutes. The Attorney General's Office concluded that it was a close question as to whether the proposed initiative is in proper form, but recommended that it be certified even though there is some doubt as to its validity. A determination by the Lieutenant Governor that a proposed initiative is in the proper form includes a determination that it does not cover a subject that is restricted for enactment by the Alaska Constitution. AS 15.45.010-080. See also Boucher v. Engstrom, 528 P.2d 456, 460-61 (Alaska 1974) (overruled on other grounds, McAlpine v. University of Alaska, 762 P.2d 81, 84 (Alaska 1988)). This determination is put in issue by Pullen's appeal. . In accordance with AS 15.45.090(2), the Lieutenant Governor prepared a petition containing the proposed bill as well as a summary of the proposed initiative. . Grounds numbered three and four are not at issue in this appeal. . In its Memorandum and Order, the superior court stated: The court believes that while the state does not literally own salmon resources, salmon are public assets which may not be appropriated by initiative. The Alaska Constitution contains explicit provisions which state that the natural resources of the state belong to the state, which controls them as trustee for the people of the state. The state takes in significant revenues from fish taxes. The right to participate in the statewide harvest of salmon is valuable to all user groups. Fish have long been an important part of the economy and the desire to control fish resources was an important motivation for Statehood. Permits granted by the state to take fish sell for significant sums. The state devotes substantial financial resources for the protection and management of fish and other wildlife. These factors taken together provide a basis for concluding that the state has sufficient interest in salmon as public assets so as to characterize them as state property which may not be appropriated by initiative. (Footnote omitted.) . In regard to this holding the superior court stated: The court believes that neither the Alaska Constitutional Convention Minutes nor Article XII, section 11 of the Alaska Constitution support the plaintiffs' assertion that the public trust doctrine prohibits establishing a new priority of the state's natural resources directly through the initiative process. The delegates to the constitutional convention after considerable debate regarding the impact of the authority of Alaskans to enact legislation directly through initiative, decided not to distinguish between matters in the hands of the legislature and matters subject to the initiative process. The court finds nothing in Article XI, Article XII, or the Minutes of the Alaska Constitutional Convention which (aside from an appropriation argument) would prohibit the subject matter of the F.I.S.H. Initiative from being enacted by the people of Alaska directly through the initiative process. The plaintiffs' public trust doctrine argument may pose a separate, post ballot-box issue. At the current stage of the enactment process, the only issue for the court is whether by creating a new priority among beneficial users of the state's fishery resources, the F.I.S.H. Initiative makes an appropriation under the McAlpine test. .As to this last holding, the superior court in its Memorandum and Order wrote: The court finds that the F.I.S.H. initiative does not constitute an appropriation as defined by the Alaska Supreme Court in McAlpine. The substantive portion of the F.I.S.H. Initiative creates a new system of preference among beneficial users of the statewide salmon harvest. The F.I.S.H. initiative requires that after escapement decisions are made, the Board of Fisheries must then determine what percentage, if any, will be allocated to personal use and sport fisheries up to a maximum of five percent. The initiative does not alter or establish new allocations or preferences among subsistence, personal use, and sport fisheries. By itself, the initiative does not convey or allocate any part or definite amount of the salmon harvest to a specific user group. Further action by the Board of Fisheries is required before fish resources are allocated to competing user groups. The Board has broad discretion under the initiative to make allocations to consumptive and non-consumptive users based on the amount of fish available and escapement needs. There are no definite or calculable amounts to which any user group is automatically entitled. The directive that up to five percent of the statewide harvest must be reserved for consumptive users provides a maximum "preference" that is within the Board's discretion to implement. The initiative does not guarantee that personal use and sport fisheries will be allocated any fish. Despite the preference scheme, the Board has considerable discretion to determine the amount of fish each group is entitled to and may still allocate based on what it sees as the best interests of the whole. This pre-election review of an initiative is limited to a determination of whether the contents of the initiative include subjects which the people may not enact directly through initiative. The F.I.S.H. Initiative establishes a preference, but retains allocation decisions in the Board of Fisheries. As such, the initiative is not executable, mandatory, or reasonably definite without further legislative action. The initiative does not make an appropriation of state assets as defined by the Alaska Supreme Court in McAlpine. . According to F.I.S.H., "[t]he United States Supreme Court itself has been careful in its decisions since [Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896) ] to clarify the fact that state 'ownership' of fish and game is simply a shorthand way of describing the state's significant interest in preserving and regulating fish and wildlife within its borders." In addition to Geer, F.I.S.H. cited Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979) (overruling Geer ); Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371, 384—86, 98 S.Ct. 1852, 1860-62, 56 L.Ed.2d 354 (1978); Toomer v. Witsell, 334 U.S. 385, 402, 68 S.Ct. 1156, 1165, 92 L.Ed. 1460 (1948); and Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751-52, 52 L.Ed.2d 304 (1977) ("The 'ownership' language of cases such as those cited by appellant must be understood as no more than a 19th century legal fiction expressing 'the importance . that a state have power to preserve and regulate the exploitation of an important resource.' "). . As we explained above, [t]he usual rule applied by this cotut is to construe voter initiatives broadly so as to preserve them whenever possible. Thomas v. Bailey, 595 P.2d 1, 3 (Alaska 1979). However, initiatives touching upon the allocation of public revenues and assets require careful consideration because the constitutional right of direct legislation is limited by the Alaska Constitution. Fairbanks v. Convention & Visitors Bureau, 818 P.2d 1153, 1155 (Alaska 1991). 10. AS 15.45.010 provides: The law making powers assigned to the legislature may be exercised by the people through the initiative. However, an initiative may not be proposed to dedicate revenue, to make or repeal appropriations, to create coruts, to define the jurisdiction of courts or prescribe their rules, or to enact local or special legislation. .In this regard we further stated: Even if the initiative provision referred to appropriations "of public funds," the issue would still be whether public funds refers generally to the state's assets or only those assets in the form of money. We have concluded that by the term "appropriations," Article XI, section 7 prohibits an initiative whose primary objective is to require the outflow of state assets in the form of land as well as money. Bailey, 595 P.2d at 6, 7. . We further elaborated: Initiatives for the purpose of requiring appropriations were thought to pose a special danger of "rash, discriminatory, and irresponsible acts." The delegates [to Alaska's Constitutional Convention] were influenced by the experience of other states whose constitutions placed no restrictions on the subject matter of initiatives. They adopted the appropriations restriction to avoid the bad experiences of those states. The delegates wanted to prohibit the initiative process from being used to enact giveaway programs, which have an inherent popular appeal, that would endanger the state treasury. A rather lengthy statement by Delegate Taylor expláins the delegates' concerns: Now in practically all the states that have initiative and referendum there are certain limitations put upon the matters that can be acted upon by those measures. Now appropriations are not subject to the initiative or the referendum. Some states made a great mistake by not restricting the initiative measures and allowed pressure groups to gather great numbers of signatures to a petition and that petition would require the expenditure of large amounts of money, perhaps a great deal more than the state could possibly afford and sometimes they would also initiate some legislation to raise money, a revenue measure and then directed that the proceeds of that measure would be utilized for a particular purpose. In other words, it took the making of revenue measures and expenditure of the funds away from the legislature and in some instances the governmental functions and governmental institutions suffered a great deal. And it was necessary within as short a time as possible to undo the damage that has been done. Id..'at 7, 8 (footnotes omitted). . The test we applied in City of Fairbanks derives from McAlpine. . It shotdd be noted that subsistence fisheries are already accorded a preference which is not affected by our determination that the proposed initiative is violative of article XI, section 7 of the Alaska Constitution as well as AS 15.45.010. . We need not disavow the McAlpine "whether the initiative would set aside a certain specific amount of money or property for a specific purpose or object in such a manner that is executable, mandatory, and reasonably definitive with no further legislative action" language in concluding that the current initiative makes an appropriation. The initiative, if passed, would suffice without further action of the legislature to direct the Board of Fisheries to allocate salmon in accordance with its terms. Further, the point of the quoted language is that where the legislature retains a broad range of freedom'to make allocation decisions, an appropriation will not be found. Under the current initiative, in cases of shortage — which is when the initiative operates — such freedom is not retained. 16. In regard to potential conflicts between different users, F.I.S.H. states: There are no conflicts at all over pink salmon, the most numerous of all salmon in Alaska. In most areas, chum salmon and red salmon are only exploited for commercial purposes. There are real conflicts on the Kenai Peninsula over king salmon and to a much lesser extent red salmon; there are conflicts in Southeastern Alaska over king and silver salmon, and there are some conflicts between subsistence users and commercial fishermen on the river systems in western Alaska. . The Fish and Game statutes define "subsistence use" as the "noncommercial, customary and traditional uses of wild, renewable resources . for direct personal or family consumption...." AS 16.05.940(32). "[P]ersonal use fishing means the taking, fishing for, or possession of fin fish . by Alaska residents for personal use and not for sale or barter with gill or dip net, seine, fish wheel, long line, or other means defined by the Board of Fisheries." AS 16.05.940(24). "[Sjport fishing means the taking of or attempting to take for personal use, and not for sale or barter, any . anadromous fish by hook and line with the line attached to a pole or rod which is held in the hand or closely attended, or by other means defined by the Board of Fisheries." AS 16.05.940(29). . Our holding makes it unnecessary to address Pullen's argument that the management of Alaska's salmon resources falls exclusively within the power of the state legislature as trustee of Alaska's wildlife, and therefore is not a proper subject of an initiative.

11843012

Dana DANSEREAU, Gregory J. Gursey, Samuel Haywood, Kathy Haywood, C.E. Jenkins, Kim Ryan, James Weymouth, Rita T. Weymouth, T.J. Northcott, David D. Kyzer, M.D., and Jane and John Does 1-10, Appellants, v. Fran ULMER, Lieutenant Governor, State of Alaska, and David Koivuniemi, Acting Director of the Alaska Division of Elections, Appellees, and Tony Knowles, Personally, and Fran Ulmer, Personally, Intervenor Appellees

Dansereau v. Ulmer

1998-04-03

No. S-7854

916

921

955 P.2d 916

955

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Dana DANSEREAU, Gregory J. Gursey, Samuel Haywood, Kathy Haywood, C.E. Jenkins, Kim Ryan, James Weymouth, Rita T. Weymouth, T.J. Northcott, David D. Kyzer, M.D., and Jane and John Does 1-10, Appellants, v. Fran ULMER, Lieutenant Governor, State of Alaska, and David Koivuniemi, Acting Director of the Alaska Division of Elections, Appellees, and Tony Knowles, Personally, and Fran Ulmer, Personally, Intervenor Appellees.

Dana DANSEREAU, Gregory J. Gursey, Samuel Haywood, Kathy Haywood, C.E. Jenkins, Kim Ryan, James Weymouth, Rita T. Weymouth, T.J. Northcott, David D. Kyzer, M.D., and Jane and John Does 1-10, Appellants, v. Fran ULMER, Lieutenant Governor, State of Alaska, and David Koivuniemi, Acting Director of the Alaska Division of Elections, Appellees, and Tony Knowles, Personally, and Fran Ulmer, Personally, Intervenor Appellees. No. S-7854. Supreme Court of Alaska. April 3, 1998. Rehearing Denied May 7, 1998. Wevley William Shea, Anchorage, for Appellants. John B. Gaguine, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellees. Before MATTHEWS, C.J., and COMPTON, EASTAUGH and BRYNER, JJ.

2702

16698

OPINION EASTAUGH, Justice. I. INTRODUCTION Public interest litigants prevailed on one of three issues. They claim it was error not to award them full reasonable attorney's fees and certain expert witness fees. We hold that it was not error to deny the witness fees or to reduce the attorney's fees to a reasonable amount, but that it was error to apportion the fees by issue. We therefore affirm in part and reverse in part. II. FACTS AND PROCEEDINGS Ten voters (Contestants) challenged the validity of the 1994 gubernatorial election in which Tony Knowles and Fran Ulmer were elected governor and lieutenant governor, respectively. Dansereau v. Ulmer, 903 P.2d 555, 558 (Alaska 1995). The Contestants advanced three main arguments: (1) that a North Slope Borough voter assistance program violated state and federal election laws; (2) that a postcard sent to shareholders of Doyon, Limited violated state and federal election laws; and (3) that the State committed election malconduct in its operation of the Prudhoe Bay voting station. Id. at 559. The superior court granted summary judgment to the State on all three issues, and the Contestants appealed to this court. Id. at 558. We reversed and remanded on the Doyon lottery issue, and affirmed the grant of summary judgment on the other two issues. Id. at 572. The Contestants then filed motions in this court seeking attorney's fees and costs incurred in both the trial and appellate courts. A single justice gave the parties an opportunity to submit additional information. Upon remand, and while those motions were pending, the superior court allowed Knowles and Ulmer to intervene. On November 7, 1995, the parties agreed to settle and to dismiss the case with prejudice. The initial proposed settlement called for an arbitrator to decide the issue of attorney's fees incurred in the trial and appellate courts. In a hearing that same day, the superior court expressed reservations about approving the settlement agreement containing the arbitration provision. The parties then agreed at the hearing that the superior court could act as the arbitrator and decide attorney's fees either under the public interest exception to Civil Rule 82 or under Civil Rule 82(b)(3). The State also stipulated that the Contestants were prevailing parties "on certain issues." Pursuant to the settlement agreement, the Contestants s.ought awards of $170,355 in attorney's fees and $32,212.54 in costs, including $20,000 in expert witness fees for Robert Motznik. The Contestants later requested $13,530 in additional attorney's fees and $598.34 in additional costs. When informed of the settlement agreement, this court entered an order deeming withdrawn the costs and fees motions Contestants had filed with us. After oral argument, the superior court awarded the Contestants $21,500 in attorney's fees and $1,284.67 in costs. The Contestants appeal both awards. III. DISCUSSION A. Standard of Review The award of attorney's fees and costs is committed to the discretion of the trial court and is reviewed only for abuse of discretion. McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165,1167 (Alaska 1993) (attorney's fees); Beaulieu v. Elliott, 434 P.2d 665, 678 (Alaska 1967) (costs). Whether the trial court has discretion to apportion a prevailing public interest litigant's attorney's fees by issue is a question of law. Accordingly, we apply our independent judgment to this question, and adopt the rule of law most persuasive in light of precedent, reason, and policy. Hickel v. Southeast Conference, 868 P.2d 919, 923 (Alaska 1994); Guin v. Ha, 591 P.2d 1281,1284 n. 6 (Alaska 1979). B. Reduction of Total Time to Reasonable Amount The superior court found that "a significant portion of time expended by plaintiffs' attorney[s], as set out in the billing statements attached to Mr. Shea's affidavits, was neither reasonably incurred [n]or necessary in prosecuting this litigation and thus should not be allowed." The Contestants' attorneys asserted that they spent 1,135.7 hours on this case. The superior court concluded that Contestants' attorneys should have spent no more than 430 hours, with one-third attributable to the Doyon postcard issue on which they prevailed. The Contestants argue that the superior court ignored law and evidence and abused its discretion in making a "manifestly unjust" award. The Contestants argue that the attorney's fees requested were "very reasonable." They claim that the time involved was extensive and the issue of voting rights was novel. In addition to the billing statements, they rely on affidavits in which the Contestants and other members of the public state that they find the fees reasonable, and evidence that the State spent a similar amount of time on this case. Although Civil Rule 82 provides for awards of partial attorney's fees, we have created an exception to this rule for public interest litigants. See Hickel, 868 P.2d at 923. Public interest litigants are normally entitled to full reasonable attorney's fees. See Hunsicker v. Thompson, 717 P.2d 358, 359 (Alaska 1986). Nonetheless, "a trial court has discretion to award less than all requested fees, for instance, if it finds the hourly rate is excessive or the total hours unreasonable." Id. (citing City of Yakutat v. Ryman, 654 P.2d 785, 794 (Alaska 1982)). Since the State has conceded that the Contestants are public interest litigants, Contestants are eligible to recover full fees provided they are reasonable. The superior court stated that it had thoroughly reviewed the court file and considered the Contestants' billing statements, taking into account the complexity of the case and the risks to the parties in order to determine whether the incurred fees were reasonable. The superior court first discussed categories of services for which it would not award fees: (1) communicating with persons who had no role in the litigation; (2) doing things usually handled by support staff; (3) dealing with media coverage; (4) communicating with persons whose names were redacted on issues unrelated to Doyon; (5) managing files and documents; (6) performing work following oral argument in this court and prior to publication of our decision; (7) doing things that were not identifiable or necessary to litigation; and (8) working on issues unrelated to Doyon. The superior court then itemized some eighteen allowable categories of services and totaled the time that the attorneys could have reasonably spent on each of those categories. That total was 430 hours. This method of calculating the total time that could have been reasonably spent was not inappropriate, and the superior court did not abuse its discretion in concluding that no more than 430 hours could have been reasonably spent by Contestants' attorneys. The Contestants argue that the time spent by the State's attorneys, 1151 hours, establishes the reasonableness of the time spent by the Contestants' attorneys. Although the time spent by opposing counsel can be relevant, it is not conclusive. An opposing attorney may have spent unreasonable amounts of time, or may have been forced to spend large amounts of time responding to an adversary's inadequate or unreasonable legal efforts. The superior court did not err in failing to rely on the time spent by the State's attorneys. C. Apportionment by Issue Because the superior court found that the Contestants prevailed on only one of the three issues on appeal, it apportioned the fees by issue and based the award on one-third of the 430 hours that it had determined were reasonable. The Contestants argue that because they are public interest litigants, the superior court did not have discretion to apportion their fees by issue. The State argues that the court did not abuse its discretion in apportioning fees by issue. For private litigants, Civil Rule 82(b)(3) gives trial courts discretion to apportion fees by issue when determining reasonable attorney's fees. Alaska R. Civ. P. 82(b)(3)(E) ("The court may vary an attorney's fees award . if, upon consideration of the factors listed below, the court determines a variation is warranted: . (K) other equitable factors deemed relevant."); see also Alaska State Bank v. General Ins. Co., 579 P.2d 1362, 1369-70 (Alaska 1978) (finding court had discretion to decline to award fees on each of the contested issues in determining a reasonable amount of attorney's fees). Civil Rule 82 embodies a policy that the prevailing party is only entitled to recover partial attorney's fees. Municipality of Anchorage v. Gentile, 922 P.2d 248, 263 (Alaska 1996). By contrast, "[a] prevailing public interest plaintiff is normally entitled to full reasonable attorney's fees." Hunsicker, 717 P.2d at 359; see also Anchorage Daily News v. Anchorage Sch. Dist, 803 P.2d 402, 404 (Alaska 1990) (prevailing public interest litigant entitled to "full amount of its attorney's fees, to the extent that they are otherwise reasonable"). The policy of awarding full attorney's fees to public interest litigants was designed to encourage plaintiffs to raise issues of public interest as "private attorneys general." Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977). We have not directly addressed whether trial courts have discretion to apportion fees by issue in public interest cases. Hunsicker restricts the discretion of trial courts to award less than full reasonable attorney's fees to public interest litigants. 717 P.2d at 359. We stated: On remand, the court may consider the reasonableness of the total time expended on the case, the hourly rate charged and any other components of a reasonable fee. It may not consider [the losing defendant's] good faith, a litigant's duty to consider the costs of litigation, or the expecta tion that a public servant would absorb certain costs of maintaining her office. Id. at 360. In Hickel, the issue was whether the court must apportion fees by issue and award fees only for those issues on which the public interest litigant prevailed. 868 P.2d at 923. We held that the trial court was not required to apportion fees by issue. Id. at 925. Hickel suggests, however, that a trial court has "the discretion to consider the prevailing party's degree of success on issues when the court sets the award amount." Id. at 925-26 (citing Alaska State Bank, 579 P.2d at 1369). We now elaborate on this statement and hold that for prevailing public interest litigants, courts should only exercise this discretion in exceptional circumstances. In Hickel, one reason we gave for not requiring apportionment by issue was that apportionment would be redundant in light of Rule 82's framework. 868 P.2d at 925. We found that "Alaska's approach already takes into account the degree of success at the initial stage of determining prevailing party status." Id. Once a public interest litigant has been identified as the prevailing party, his or her varying degree of success on the different issues is rarely a component of a "reasonable fee." We conclude that attorney's fees for prevailing public interest litigants, therefore, may be apportioned only in exceptional circumstances. The superior court did not find and we see no basis for finding exceptional circumstances here. For example, the superior court did not find that the other issues Contestants raised were frivolous or had been raised simply to inflate a prospective award of attorney's fees. The superior court apportioned fees only because it found that the Contestants only prevailed on one of three issues on appeal. We reverse and hold that these public interest litigants are entitled to full reasonable attorney's fees, without apportionment by issue. D. Expert Witness Fee The Contestants claim that the superior court erred by failing to award as costs expert witness fees for Robert Motznik. Civil Rule 83 provides that the payment of witness fees shall be governed by the rules for the administration of the courts. Per administrative rule, an expert witness may be paid up to $50 an hour for the time the witness spends testifying. Alaska R. Admin. P. 7(c). The superior court has discretion, however, to invoke Civil Rule 94 in order to relax Administrative Rule 7(c) to prevent injustice. Alaska R. Civ. P. 94; Hickel, 868 P.2d at 931. The superior court declined to invoke Rule 94 because it found that Motznik was not paid for his work and had no binding agreement with the Contestants to be paid for his work. It also noted that Motznik did not testify. The superior court was not required to invoke Rule 94. Parties cannot expect to recover as costs expert witness fees that are contingent on the award itself. Such a practice would tend to encourage experts to become advocates. The superior court did not abuse its discretion by failing to award costs for Motznik's expert services. IV. CONCLUSION The superior court did not abuse its discretion in finding that the total time spent by the Contestants' attorneys was excessive and in calculating the reasonable time as 430 hours, nor did it abuse its discretion in denying any cost award for expert witness Motz-nik. We conclude, however, that it was an abuse of discretion to apportion the attorney's fees by issue. We therefore AFFIRM in part and REVERSE in part the Septem ber 4, 1996, final judgment, and REMAND for award of attorney's fees based on the 430 hours that the superior court determined to be reasonable. FABE, J., not participating. . Although the superior court awarded attorney's fees for proceedings before both this court and the superior court, it did not invoice Appellate Rule 508 in calculating the award for services performed on appeal. The parties authorized the superior court to compute attorney's fees either under the exception to Rule 82 for public interest litigants or under the factors delineated in Rule 82(b)(3). The superior court relied on the exception to Rule 82 for public interest litigants. . Despite the fact that the parties agreed that the trial judge would act as an arbitrator, they do not contend that the standard of review applicable to arbitration awards under the Uniform Arbitration Act applies here. See AS 09.43.120, .130. Absent thorough briefing and careful consideration, we would not apply an arbitration standard of review to a decision of a superior court judge even when a judge is said to be acting as an arbitrator by stipulation of the parties. .We discuss in Part III.C whether the trial court has discretion to apportion fees by issue. . We can, however, posit a situation in which a trial court may consider a public interest litigant's varying degrees of success on different issues. For example, a trial court could conceivably find that some issues litigated by prevailing public interest litigants were so frivolous that apportionment of attorney's fees would be necessary to determine reasonable fees. . The Contestants listed several other issues in their "Points on Appeal" that they failed to argue. These include the claim that the trial court erred in awarding costs (other than the expert witness fee) under Civil Rule 79, and the claim that the court erred in allowing Tony Knowles and Fran Ulmer to intervene. These issues, to the extent they are not subsumed in the arguments addressed above, are waived. "[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991); see also Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n. 8 (Alaska 1990) (holding that argument was waived where appellant mentioned it in main brief but failed to "advance any legal argument as to why the court erred"). . Civil Rule 94 provides: "These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice."

11843192

Herbert James GILLEY, Jr., Appellant, v. STATE of Alaska, Appellee

Gilley v. State

1998-03-27

No. A-6619

927

931

955 P.2d 927

955

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Herbert James GILLEY, Jr., Appellant, v. STATE of Alaska, Appellee.

Herbert James GILLEY, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-6619. Court of Appeals of Alaska. March 27, 1998. Vennie E. Nemecek, Assistant Public Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Jayne L. Wallingford, Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

2514

16285

MANNHEIMER, Judge. In 1997, Herbert James Gilley, Jr., was convicted of felony driving while intoxicated, AS 28.35.030(a), (n). Gilley had two prior felony convictions, one from 1993 and the other from 1977. The question in this case is whether the superior court was obliged to treat Gilley as a third felony offender for purposes of presumptive sentencing, or whether (as Gilley contends) the superior court had the discretion to ignore the 1977 felony conviction and to treat Gilley as a second felony offender. Gilley contends that his sentence must be vacated because the superior court did not realize that it had the discretion to sentence him as a second felony offender. For the reasons explained here, we hold that the superior court was obliged to treat Gilley as a third felony offender, and we therefore affirm his sentence. As this court recognized in Juneby v. State, 641 P.2d 823, 831 n. 12 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983), Gilley's status as a second or third felony offender hinges on the relationship between, on the one hand, the definitions of "second felony offender" and "third felony offender" codified in AS 12.55.185 and, on the other, the provisions of AS 12.55.145(a) and (f) that explain what constitutes a "prior conviction" for presumptive sentencing purposes. Under the presumptive sentencing laws, a defendant is considered a "second felony offender" if "the defendant previously has been convicted of a felony". AS 12.55.185(12). A defendant is considered a "third felony offender" if "the defendant has been at least twice previously convicted of a felony". AS 12.55.185(14). Gilley was convicted of third-degree assault in 1993, and he was convicted of assault with a dangerous weapon (under the former criminal code) in 1977. Because Gilley "has been . twice previously convicted of a felony", he would ordinarily be classified as a third felony offender. AS 12.55.145(a)(1)(A) contains an exception to the definitions of "second felony offender" and "third felony offender". This exception applies if the defendant's current offense was committed ten years or more after the defendant was discharged from his or her last felony sentence (including any period of probation or parole). The statute provides: For purposes of considering prior convictions in imposing sentence under [any of the presumptive sentencing provisions of AS 12.55.125], . a prior conviction may not be considered if a period of 10 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and [the defendant's] commission of the present offense unless the prior conviction was for an unclassified or class A felony[.] Under this statute, if Gilley had committed his present felony ten years or more after his unconditional discharge from his immediately preceding felony conviction, he would be considered a first felony offender for presumptive sentencing purposes even though he had twice previously been convicted of a felony. See Griffith v. State, 653 P.2d 1057, 1058 (Alaska App.1982). It is apparent, however, that Gilley does not fall within this exception: his immediately preceding felony conviction was entered in 1993. (In fact, Gilley was still on probation from that felony conviction when he committed his present offense.) Gilley nevertheless asserts that, because his 1977 felony conviction is more than ten years old, he is entitled to a limited exception from AS 12.55.185(14), the statute that defines "third felony offender". Gilley contends that AS 12.55.145(a) authorizes a sentencing judge, in the judge's discretion, to ignore any felony conviction that is more than 10 years old. Thus, Gilley argues, the judge who sentenced him was authorized to disregard Gilley's 1977 felony conviction when the judge determined Gilley's status as either a second or a third felony offender. Gilley bases his argument on a passage from the legislative commentary to AS 12.55.145: By referring to the "immediately preceding offense", [AS 12.55.145(a) ] provides that convictions which occurred more than [ten] years prior to the commission of the offense for which the defendant is being sentenced may be considered if [ten] years has not elapsed between an intervening conviction, plus periods of disability arising under it, and the commission of the offense for which the defendant is being sentenced. 1978 Senate Journal, Supp. No. 47 (June 12), pp. 156-59 (emphasis added). Gilley notes that, in this passage, the legislature uses the word "may" to describe the sentencing court's authority to consider a defendant's remote felony convictions. Gil-ley points out that the word "may" normally connotes permission rather than obligation. United States v. Contreras, 895 F.2d 1241, 1243 (9th Cir.1990); Koch Ref. Co. v. United States Dep't of Energy, 497 F.Supp. 879, 891 (D.Minn.1980). From this, Gilley concludes that a sentencing court is entitled to consider a defendant's remote felony convictions (in Gilley's case, the 1977 assault conviction), but the court is not obliged to do so. That is, Gilley argues that the superior court had the discretion to treat him as a second felony offender rather than a third felony offender. The basic flaw in Gilley's argument is that he concentrates on the commentary while ignoring the wording of the statute itself. Legislative commentary can be (and often is), quite helpful in elucidating the meaning of a statute. However, it is essential to keep in mind that the sentencing court's powers and duties are defined by the presumptive sentencing statutes, not the commentaries to those statutes. See Champion v. State, 908 P.2d 454, 463-64 (Alaska App. 1995) (refusing to interpret a statute in conformity with statements in the legislative commentary when those statements clearly did not agree with the wording and structure of the statute). As explained above, the basic definitions of "second felony offender" and "third felony offender" are given in AS 12.55.185(12) and (14). These two provisions establish a straightforward rule: a person is a "second felony offender" if they have been convicted of a felony once before, and a person is a "third felony offender" if they have been convicted of a felony at least twice before. The pertinent exception to this rule is specified in AS 12.55.145(a)(1)(A): a defendant's prior felony convictions "may not be considered if a period of 10 or more years has elapsed between the date of the defen dant's unconditional discharge on the immediately preceding offense and [the defendant's] commission of the present offense[,] unless the prior conviction was for an unclassified or class A felony". There are two significant differences between the wording of this statute and the wording of the commentary that Gilley relies on. Both of these differences undercut Gil-ley's argument that a sentencing court has the authority to disregard felony convictions that are more than 10 years old. First, even though the commentary distinguishes between felony convictions that are "more than 10 years old" and those that are more recent, the statute draws no such distinction. According to the wording of the statute, only two factors affect a sentencing court's ability to consider a defendant's prior felony convictions: the classification of the prior felony, and the amount of time (if any) between the defendant's current offense and the defendant's unconditional discharge from the immediately preceding conviction. If that interval is less than 10 years, then all of the defendant's prior felony convictions are counted toward determining the defendant's status, regardless of how old those convictions are. If that interval is 10 years or more, then the only prior convictions that count are convictions for unclassified or class A felonies — again, regardless of how old those convictions are. Simply put, AS 12.55.145(a)(1)(A) draws no line between felony convictions less than 10 years old and felony convictions more than 10 years old. There is no language in the statute to support the distinction described in the commentary. Second, the commentary is worded in terms of authorization; that is, it speaks of situations in which a sentencing court "may" consider a defendant's prior felony convictions. In contrast, the statute is worded as a prohibition. It does not purport to grant authority; rather, it limits authority by specifying those situations in which a sentencing court "may not" consider a defendant's prior felony convictions. Read together, the three pertinent statutes — AS 12.55.145(a)(1), AS 12.55.185(12), and AS 12.55.185(14) — establish a sentencing framework in which all of a defendant's prior felony convictions will be counted toward establishing the defendant's status as a second or third felony offender unless one or more of the convictions is expressly exempted by AS 12.55.145(a)(1)(A). These statutes neither declare nor suggest that a sentencing court has the discretion to ignore one or more of the defendant's prior felony convictions. However, this is not necessarily the end of the discussion. Alaska does not follow the "plain meaning" rule (the rule that bars a court from considering legislative history as an interpretive aid if a statute's meaning is facially "plain"). Gilley is entitled to argue that the commentary to AS 12.55.145(a) shows that the legislature intended something different from what the words of the statute appear to say. Nevertheless, "[w]here a statute's meaning appears clear and unambiguous, . the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent." University of Alaska v. Turneo, 933 P.2d 1147, 1152 (Alaska 1997); Lagos v. City and Borough of Sitka, 823 P.2d 641, 643 (Alaska 1991). Gilley's brief to this court contains no suggestion as to why the legislature might have wished sentencing judges to have the discretion to ignore a defendant's prior felony convictions. The whole history of presumptive sentencing in Alaska suggests exactly the opposite. In Juneby v. State, 641 P.2d 823, 829-833 (Alaska App.1982), this court reviewed the events leading up to the enactment of presumptive sentencing and the details of Alaska's presumptive sentencing laws. We concluded that the presumptive sentencing statutes "reflect the legislature's intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses". Juneby, 641 P.2d at 830. Allowing sentencing judges to ignore a defendant's prior felony convictions — to treat a third felony offender as a second felony offender at the judge's discretion — appears to be the antithesis of the legislature's intent. This court declared in Juneby that it was "manifest" that presumptive sentencing, through its "focus on eliminating disparity and achieving uniformity in sentences^] was calculated to significantly restrict the trial court's traditionally broad sentencing discretion." Id. at 830 n. 11. In explaining why sentencing judges should be cautious when adjusting presumptive terms based on aggravating and mitigating factors, this court reiterated the underlying philosophy of presumptive sentencing: When viewed in the light of the fundamental goals of the [presumptive] sentencing statutes, the rationale for this relatively inflexible sentencing framework is readily understood. If sentencing courts were permitted . to deviate routinely and substantially from the presumptive terms imposed by law, the fundamental purposes of eliminating disparity and establishing reasonable uniformity in sentencing would be completely undermined. Juneby, 641 P.2d at 833. By enacting the presumptive sentencing statutes, the legislature wished to create a set of sentencing rules and expectations grounded on the objective facts of the defendant's criminal history and the circumstances surrounding the defendant's current offense. In our past decisions, this court has attempted to implement this legislative purpose. For instance, in Hartley v. State, 653 P.2d 1052 (Alaska App.1982), we rejected the contentions that a sentencing judge was bound by the State's decision not to raise applicable aggravating factors, or that the State could purposefully withhold evidence that estab•lished aggravating factors. We declared: Once [the State] has obtained a conviction, . the legislature has established specific guidelines governing sentencing. These guidelines are particularly important in determining presumptive sentences for those previously convicted of felonies. The decision to circumscribe sentencing discretion was in large part based upon a legislative belief that greater uniformity in sentencing should be sought and unjustified disparity eliminated. AS 12.55.005. To allow the parties to ignore past convictions or aggravating and mitigating factors suggested by the evidence at trial or disclosed in a presentence report prepared by a probation officer would be to encourage unjustified disparity in sentencing. We therefore hold that the state has no discretion to suppress evidence of past convictions or aggravating or mitigating factors. Hartley, 653 P.2d at 1056. For the same reasons, we reject Gilley's suggested reading of AS 12.55.145(a)(1)(A). Gilley's assertion that sentencing judges have the discretion to ignore prior felony convictions and to treat a third felony offender as a second felony offender is not only unsupported by the wording of the statute, it is also fundamentally at odds with the philosophy and goals of presumptive sentencing. Therefore, even though the commentary to AS 12.55.145(a) might suggest that sentencing judges have such authority, we reject this suggestion and we adhere to the wording of the statute. Given Gilley's prior felony convictions in 1993 and 1977, the superior court was obliged to sentence Gilley as a third felony offender. The judgement of the superior court is AFFIRMED. . In 1982, the legislature amended AS 12.55.145(a)(1) to abolish the time restriction on a sentencing court's consideration of a defendant's prior unclassified and class A felonies. We note that the legislature explained this amendment in a commentary that employs similar permissive wording. In this commentary (found in 1982 House Journal, Supp. No. 64 (June 2), pp. 21-22), the legislature declared that it amended the statute "to allow the [sentencing] court to consider all prior unclassified felonies and class A felonies". (Emphasis added.) . Gilley also supports his argument with a passage from this court's decision in Griffith. The passage from Griffith reads: We believe that [AS 12.55.145(a)(1)] . allows only one interpretation. Whe[n] a defendant has spent [ten] years between the date of his unconditional discharge [from] his most recent prior felony without committing another felony, he is [treated as a first felony offender]. Whe[n,] however, less than [ten] years separates his unconditional discharge [from] a prior felony [and] the commission of his current offenseL] then all prior offenses],] however remotef,] may be considered for purposes of presumptive sentencing. Griffith, 653 P.2d at 1058 (emphasis added). Gilley notes that, in this passage, this court also used the word "may" to describe the sentencing court's authority to consider a defendant's prior felony convictions. .For an insightful debate on this point of law, see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997). This book contains an essay by Justice Scalia on the question of statutory interpretation, as well as answering commentary by several distinguished legal scholars and historians.

11843323

Stanley VASKA, Appellant, v. STATE of Alaska, Appellee

Vaska v. State

1998-04-03

No. A-6312

943

947

955 P.2d 943

955

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Stanley VASKA, Appellant, v. STATE of Alaska, Appellee.

Stanley VASKA, Appellant, v. STATE of Alaska, Appellee. No. A-6312. Court of Appeals of Alaska. April 3, 1998. Margi Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee. Before COATS, C.J., and MAJSTNHEIMER and STEWART, JJ.

2332

14388

COATS, Chief Judge. Stanley Vaska was convicted, following a jury trial, of sexual abuse of a minor in the first degree, an unclassified felony with a maximum sentence of thirty years of imprisonment, and sexual abuse of a minor in the second degree, a class B felony. AS 11.41.434(a)(1); AS 11.41.436(a)(2). Superior Court Judge Dale O. Curda sentenced Vaska to a composite sentence of forty years with fifteen years suspended. Judge Curda placed Vaska on probation for a period of ten years following his release from confinement. Vaska appeals his conviction to this court. We remand. Vaska contends that Judge Curda erred in refusing to recuse himself and to set aside his rulings and the verdict in this case. Some factual background is necessary to understand Vaska's claim. In the middle of March 1996, around the time of Vaska's trial, the case of State v. Jones, No. 4BE-S92-1258CR, was scheduled for trial before Judge Curda. A few days before the Jones trial was to commence, Bethel District Attorney Jake Metcalfe became concerned that pretrial motions had not been decided in Jones. Metcalfe encountered Debran Rowland, Judge Curda's law clerk, in the courthouse and asked about the motions. Rowland told Metcalfe to "stop nagging her." Within twenty-four hours, Metcalfe received a copy of a confidential bench memorandum from Rowland to Judge Curda; this memorandum discussed a pre-trial motion in the Jones case. Rowland attached a sticky note to the memorandum which stated the following: FYI — Just so you know how great a friend you have here — This is an indication of the battles I take on for you guys (and, of course, for the law). It is also part of the reason decisions take so fucking long. When you reason w/o the law, you can say anything. The point is to do it right. So, quit nagging, and don't ever cross me, or I'll get you. P.S. FOR YOUR EYES ONLY!!! About two weeks later, on April 3, 1996, Metcalfe informed Judge Curda of the note and memorandum he received from Rowland. At the same time, Metcalfe provided the court with documents indicating that Rowland had had sexual relations with a Bethel assistant district attorney. The record does not disclose the identity of Rowland's sexual partner. Vaska's attorney was apprised of these facts in mid-May, 1996, almost two months after the jury verdict in Vaska's case. Vaska filed a motion to set aside the verdict and to assign a new judge to his case. Vaska argued that Rowland was biased in favor of the state, and that this bias either tainted Judge Curda's rulings or at least gave rise to a reasonable appearance that the judge's rulings were tainted. Judge Curda denied this motion, stating in part that he had independently reviewed his pretrial rulings and that he reaffirmed each one. On July 25, 1996, Superior Court Judge Richard D. Saveli affirmed Judge Curda's ruling. See AS 22.20.020(c). On appeal, Vaska claims that Judge Curda erred in refusing to recuse himself and to set aside the verdict based upon the misconduct of his law clerk and the appearance of unfairness which the law clerk's actions created. Vaska does not claim that Judge Curda himself was biased. Although this appears to be an issue of first impression in Alaska, several federal courts have considered the issue of whether apparent bias or conflict of interest on the part of a judge's law clerk could result in an appearance of impropriety which would require reversal of a case. Com/pare Hamid v. Price Waterhouse, 51 F.3d 1411 (9th Cir.1995) (judge did not abuse discretion in refusing to recuse herself on account of her law clerks' professional relationships with two law firms because the relationships were insignificant and did not create an appearance of impropriety); In re AUied-Signal, Inc., 891 F.2d 967 (1st Cir.1989) (judge did not err in refusing to disqualify himself and declare a mistrial based upon his law clerks' family relationships to attorneys representing parties in light of the number of lawyers and parties involved in the complex litigation and the relatively weak and remote nature of the conflict) with Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir.1988) (judge erred in refusing to disqualify himself based upon his law clerk's close family relationship with a partner in a law firm representing parties in the case and the law clerk's extensive participation in the decision of the case; however, the error was harmless since the decision was a summary judgment motion which the appellate court could review and independently determine); Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983) (judgment vacated because magistrate erred in allowing law clerk with a conflict of interest to participate in the case). These federal cases suggest several conclusions. First, because "judges, not law clerks, make the decisions", In re Allied-Signal, 891 F.2d at 971, judges are presumptively capable of taking their law clerks' philosophical or political biases into account during the decision-making process; judges thus remain capable of rendering fair and impartial decisions in spite of their clerks' philosophical or political leanings. At the same time, however, we recognize that law clerks can play a significant role in judicial decision-making: Law clerks are not merely the judge's errand runners. They are sounding boards for tentative opinions and legal researchers who seek the authorities that affect decisions. Clerks are privy to the judge's thoughts in a way that neither [the] parties to the law suit nor [the judge's] most intimate family members may be. Hall, 695 F.2d at 179. Codes of judicial conduct have long recognized the principle that it is not enough for judicial officers to be untainted by bias; judicial officers must, in addition, conduct themselves so as to avoid engendering reasonable suspicions of bias. See Perotti v. State, 806 P.2d 325, 327 (Alaska App.1991) (Canon 3C(1) of the Code of Judicial Conduct requires judges to disqualify themselves in "[any] proceeding in which [their] impartiality might reasonably be questioned"). Moreover, the conduct of members of the judge's staff can, in some circumstances, implicate the judge's duty to avoid creating the appearance of bias. Under Alaska Judicial Canon 3B(2), judges must supervise their staff so as to "require [them] . to observe the standards of fidelity and diligence that apply to [the judge]." Because of the close working relationship between judges and their law clerks, there comes a point where a law clerk's bias for or against a particular party or attorney, or a law clerk's potential interest in the outcome of particular litigation, rises to an intolerable level — -a level where the judicial decisionmak-ing process comes under reasonable suspicion. As the court stated in Hamid, 51 F.3d at 1416, "[e]ven if the judge has no [personal] reason to recuse herself ., a law clerk's relationships might cause [people to reasonably question] the impartiality of [the] decisions . in which the [law] clerk participates." If a judge's law clerk is actually biased for or against a party or an attorney, or if the law clerk has a substantial personal interest in the outcome of litigation, then the law clerk should not participate in any facet of the case. Compare AS 22.20.020(a)(9), forbidding judges from participating in litigation when they "feel[ ] that, for any reason, a fair and impartial decision cannot be given." Also compare Canon 3E(l)(a) of the American Bar Association's Model Code of Judicial Conduct: "A judge shall disqualify himself or herself . [when] the judge has a personal bias or prejudice concerning a party or a party's lawyer[.]" • More difficult problems are posed by situations short of actual bias or conflict of interest, where a law clerk's actions or a law clerk's relationship to a party or an attorney may give rise to an appearance of partiality. In the worst of such circumstances, disqualifying the law clerk would still be the proper course of action. However, if circumstances gave less cause for alarm, a judge might reasonably decide to reveal the law clerk's potential bias or conflict of interest to the parties and see if they would be willing to waive the problem. Compare AS 22.20.020(b) (allowing the parties to waive various grounds of judicial disqualification— but not actual bias); Canon 3F of the American Bar Association's Model Code of Judicial Conduct (again, allowing the parties to waive various grounds of disqualification — but not a judge's "personal bias or prejudice concerning a party"). In the present case, the record raises the possibility that Judge Curda's law clerk, because of her personal relationship with one of the state's attorneys, may have had an actual bias in favor of the attorney who prosecuted Vaska. Compare Canon 3E(l)(d)(ii) of the American Bar Association's Model Code of Judicial Conduct (requiring disqualification when "the judge's spouse . is acting as a lawyer in the proceeding"). Even if this was not so, Rowland's act of revealing a confidential memo to the district attorney might create a reasonable suspicion that she was more than simply philosophically biased in favor of the state — that she was an active partisan who was willing to break the rules to benefit the state. If reasonable people could conclude that Rowland either was biased or appeared biased, then reasonable people could also question the impartiality of the judicial decisions in which she participated to any significant degree. The record raises the possibility that Rowland participated in the decision of several of the pre-trial motions in Vaska's case. Our wording in the previous two paragraphs has been tentative because, even now, the pertinent facts are not well developed. Judge Curda refused Vaska's request for an evidentiary hearing, and thus many of the critical facts remain clouded, many of the crucial allegations unresolved. At present, all we can say is that there is reason to suspect that Rowland may have done significant work on Vaska's case, there is reason to suspect that she may have had a personal bias that affected her work in this case, and, even if her work was not affected by any actual bias, there is a significant possibility that her conduct gave rise to a reasonable appearance of bias. We therefore remand Vaska's case to the superior court for an investigation of these issues. From the briefing and the oral argument in this case, it appears that many of the pertinent facts are not in dispute and could be established by stipulation or affidavit. However, because there is a significant possibility that an evidentiary hearing will be required, and because, if a hearing is required, there is a significant possibility that Judge Curda will be a material witness, the proceedings on remand should be conducted by another judge. See AS 22.20.020(a)(3). On remand, it will be Vaska's burden to establish, by a preponderance of the evidence, the factual grounds for distrusting Rowland's participation in the superior court's rulings in Yaska's case. This would apparently involve proof (a) that Rowland was personally biased in favor of the attorney who prosecuted Vaska, or (b) that Rowland engaged in conduct that created a reasonable appearance of strong personal bias in favor of the state — a bias above and beyond philosophical or political bias in favor of the government in criminal cases. If Vaska succeeds in proving either actual bias or a reasonable appearance of bias, this will presumptively invalidate any of the superior court's rulings in which Rowland significantly participated. However, the state should be given the opportunity to prove (again, by a preponderance of evidence) that Rowland did not significantly participate in one or more of those rulings (thus negating the presumption that those rulings are invalid). After the superior court identifies which (if any) of the prior rulings in this case should be deemed invalid, the final issue will be whether those prior rulings can realistically be reconstructed at this time. With regard to pre-trial rulings involving suppression of evidence, propriety of the indictment, and the like, there is apparently no impediment to having another judge decide these matters de novo. However, mid-trial rulings involving the presentation of evidence, the examination of witnesses, and other discretionary matters may present a more difficult problem. The superior court must assess whether it is realistic to have a new judge re-decide these issues or whether it is simply impossible to reconstruct those decisions — in which case Vaska should receive a new trial. The superior court shall enter findings on these issues and on any others which, during the remand proceedings, appear reasonably necessary to a fair resolution of this case. The court shall transmit its findings to us within 90 days of this order. (If more time is required, either party or the superior court may request an extension.) REMANDED. . Apparently Metcalfe informed Judge Curda of the identity of the assistant district attorney with whom Rowland had the sexual relationship. . The state claims that Vaska's motion was based solely on Rowland's sexual involvement with an assistant district attorney and not on Rowland's ex parte communication with Metcalfe. We disagree. While Vaska did not mention the ex parte communication in his original motion, Vaska thoroughly addressed this issue in supplemental briefing filed June 20, 1996. . AS 22.20.020, which deals with disqualification of a judicial officer for cause does not directly deal with the possibility that the judge could be disqualified based upon a conflict which arises from the judge's staff. However Canon 3(B)(2) provides that: A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.

11843133

KOTZEBUE LIONS CLUB, Appellant, v. CITY OF KOTZEBUE, Appellee

Kotzebue Lions Club v. City of Kotzebue

1998-04-03

No. S-7570

921

927

955 P.2d 921

955

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

KOTZEBUE LIONS CLUB, Appellant, v. CITY OF KOTZEBUE, Appellee.

KOTZEBUE LIONS CLUB, Appellant, v. CITY OF KOTZEBUE, Appellee. No. S-7570. Supreme Court of Alaska. April 3, 1998. C.R. Kennelly, Stepovich, Kennelly & Ste-povich, Anchorage, and Mark L. Nunn, Law Office of Mark L. Nunn, Anchorage, for Appellant. Jerald M. Reichlin, Fortier & Mikko, P.C., Anchorage, for Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE, and BRYNER, JJ.

3629

22517

OPINION COMPTON, Justice. I. INTRODUCTION The Kotzebue Lions Club appeals from a judgment of the superior court holding that its charitable gaming activities are subject to the municipal sales tax of the City of Kotze-bue. We affirm. II. FACTS AND PROCEEDINGS The Kotzebue Lions Club, a charitable organization as defined by AS 05.15.690(5), conducts "pull tab" and bingo operations under a state permit. For a number of years, the City of Kotzebue has applied its general sales tax ordinance to these activities, and the Club has paid that tax. In 1993, following this court's decision in Dilley v. Ketchikan, 855 P.2d 1335 (Alaska 1993), the City amended its sales tax ordinance to expressly subject the Club's pull tab and bingo operations to the tax. The Club filed suit, claiming that the City lacks the authority to subject the Club's charitable gaming activities to a municipal sales tax. The superior court granted summary judgment in favor of the City and ordered the Club to remit all unpaid sales taxes. This appeal followed. III.DISCUSSION A. Standard of Review Summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Estate of Arrowwood v. State, 894 P.2d 642, 644 n. 2 (Alaska 1995). We conduct de novo review of the grant of summary judgment. See Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995). We draw all factual inferences in favor of the non-moving party; the existence of a genuine issue of material fact precludes summary judgment. Id. B. The City May Tax Charitable Gaming Activities. The Club first argues that the City lacks the power to tax charitable gaming operations. The Club asserts both that the City's tax is preempted by state law and that, even if it were not preempted, such a tax is contrary to public policy. Neither argument has merit. 1. The challenged sales tax ordinance is not preempted by state law. Preemption exists "in the absence of an express legislative direction or a direct conflict with a statute, only where an ordinance substantially interferes with the effective functioning of a state statute or regulation or its underlying purpose." Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1122 (Alaska 1978). No state statute directly conflicts with municipal taxation of charitable gaming operations. Nor has the Club cited to any express legislative direction against such a tax. The Club therefore can prevail only if the challenged sales tax "substantially interferes" with the state's regulatory scheme. "Article X, section 1 of the Alaska Constitution prescribes that '[a] liberal construction shall be given to the powers of local government units.' Accordingly [this court] 'should not be quick to imply limitations on the taxing authority of a municipality where none are expressed.' " Fairbanks North Star Borough v. College Utils. Corp., 689 P.2d 460, 464 n. 14 (Alaska 1984)(quoting Liberati, 584 P.2d at 1121). Preemption of local laws therefore requires more than the existence of state statutes concerning an activity. See Liberati, 584 P.2d at 1121-22 ("Merely because the state has enacted legislation concerning a particular subject does not mean that all municipal power to act on the same subject is lost."). In Liberati local taxation of fish sales, an activity which the state manages "to a very detailed extent" and subjects to a specific tax, did not "substantially interfere" with the state scheme. Id. at 1122 ("[I]t would obviously be wrong to conclude merely because [the state] taxes sales that a municipality is thereby precluded from taxing the same sales."). Since "the ordinance at issue [wa]s intended only to raise money, and ha[d] no regulatory component," the court saw "no direct or indirect conflict between the State's regulation of fish harvesting or fish sales and the ordinance in question." Id. While the state regulates gaming extensively, such regulation is not so all-encompassing as to foreclose all supplemental regulation by local entities. State gaming regulations include a requirement that such activities take place only under state permit, a use restriction on gaming proceeds, and a three percent tax on net pull-tab proceeds. However, this regulatory scheme, while detailed, is no more comprehensive than that which governs commercial fishing, an activity which ranks among the most heavily regulated industries in Alaska. See Cole v. State, 828 P.2d 175, 178 (Alaska App.1992) (holding that commercial fishing qualifies as a "heavily regulated industry"). Yet under Liberati, state regulation of commercial fishing does not foreclose local taxation of fish sales. Liberati, 584 P.2d at 1122. Like the ordinance at issue in Liberati, the sales tax at issue here "is intended only to raise money, and has no regulatory component." Id. The City's sales tax therefore does not "substantially interfere" with state regulations to any greater degree than did the tax at issue in Liberati. Indeed, the statutes governing gaming activities expressly contemplate municipal taxes in one provision. Moreover, Dilley indicates in dicta that a municipal tax on gaming would be permissible. Dilley, 855 P.2d at 1337. State regulation of charitable gaming therefore does not preclude municipal taxation of such activity. 2. Local taxation of the Club's gaming operations does not violate public policy. The Club also asserts that municipal taxation of charitable gaming would run counter to public policy, and therefore should be prohibited. This claim fails. The state legislature has enacted a tax on gaming, and has thereby determined that public policy permits such taxation. See AS 05.15.184. The Club neither challenges the state tax, nor explains why municipal taxation of the same activity would implicate policy concerns to any greater degree than does state taxation. This court's statement in Dilley to the effect that municipal taxation of gaming would be permissible also suggests a lack of any broad policy interest against local gaming taxes. Dilley, 855 P.2d at 1337. C. The Sales Tax Ordinance Was Validly Enacted. Assuming that the City possessed the authority to tax gaming operations, the Club contends that the recent amendment to the sales tax ordinance, which expressly includes bingo and pull-tab sales within the scope of taxable sales, was enacted through improper procedures. The Club notes that the City was required to follow the procedures set forth in AS 29.25.020 in adopting that ordinance. Alaska Statute 29.25.020(b)(3) provides that "at least five days before the public hearing a summary of the ordinance shall be published together with a notice of the time and place for the hearing." The Club contends that the procedure by which the amendment was adopted did not satisfy these requirements. This claim fails as well. 1. A typographical error in the City's Notice of Hearing on Ordinance did not invalidate the amendment to the sales tax. The Club contends that since the ordinance amending the sales tax was misidentified through a typographical error as Ordinance 93-08, instead of 93-07, "the Ordinance was not published correctly" and is therefore invalid. This claim lacks merit. Alaska Statute 29.25.020(b)(3) requires publication of "the time and place" of the hearing on a proposed ordinance. The Club has not alleged that the typographical error in the published notice interfered in any way with the ability of the Club, or the general public, to comment on the proposed ordinance. Nor has the Club alleged that it sought a copy of the mis-identified measure and was frustrated as a result of this error. Any interested party reading the notice was directed to the right meeting, at the right time, at the right place. Since the Club has not alleged or demonstrated that the error had any practical effect, the error is harmless. See 5 Beth Buday & Victoria Braucher, McQuillin Municipal Corporations § 16.78 (3d ed. rev.vol.1996) ("An error in the printing of a word in the publication of an ordinance will not affect its validity where it is plain from the context what word was intended."). 2. The published summary, while imperfect, did not render the amending ordinance invalid. The Club also claims that the published summary of the amendment was inadequate in that it stated only that the proposed ordinance would amend the definition of taxable sales. This contention also fails. Alaska Statute 29.25.020(b)(3) does not articulate the level of detail that the published summary of an ordinance must contain. However, in Fairbanks North Star Borough, 689 P.2d at 462, this court indicated that a summary meets the statutory requirements so long as it describes "clearly, if generally, what the proposed ordinance would accomplish." Fairbanks North Star Borough involved an ordinance which fixed the rates of property tax for slightly over one-third of the service areas in the borough. Id. The published summary of that ordinance described the measure as "Fixing the Rate Of Real Property Tax Levy For [the borough] Service Areas For the 1982/83 Fiscal Year." Id. (quoting Fairbanks Daily News-Miner, May 22, 1982). This summary was arguably misleading, since less than half of the service areas would actually be affected. However, it was adequate to satisfy the statutory requirements since any misconception created by this notice "would presumably motivate th[e taxpayers] to attend the hearing," rather than prevent affected parties from realizing that their interests were at stake. Id. at 462-63 n. 7. The summary which the City published described the ordinance as "amending the definition of 'sale' under KMC 3.20.010(E)." While this summary was literally accurate, it was incomplete in that it did not mention its purpose of expressly including bingo and pull-tab operations within the scope of the tax. However, like the summary at issue in Fairbanks North Star Borough, this summary indicated that the ordinance had a broader effect than it actually did. A person reading the summary would expect the ordinance to affect all sales taxes, rather than taxes on gaming operations alone. As a result, any uncertainty which the summary caused would have only the effect of inducing more people to attend the meeting, as was the case in Fairbanks North Star Borough. This summary was adequate. IV. CONCLUSION The City has the authority to tax charitable gaming activities. The City's amended tax ordinance is valid. We AFFIRM. . The Club also argues that since the Club is a charitable organization, article IX, section 4 of the Alaska Constitution renders the Club's property exempt from taxation, and the Club is therefore exempt from the City's sales tax. This claim fails. The tax at issue does not fall upon the property of the Club as such, but falls instead on the sale of property to gaming participants. The Club has cited no authority for the proposition that charitable organizations confer tax-exempt status on every transaction to which they are a party. The Club also asserts that since gaming participants would actually pay the tax, they must all be joined as indispensable parties. This claim also fails. The Club cites no authority for the proposition that municipalities cannot bring actions to collect sales taxes unless they join every party to every taxable sale. Nor does the Club present any logical reason for adopting such a rule. Indeed, since joinder of all parties to taxed sales is normally impossible, it appears entirely appropriate for a municipality seeking to collect a sales tax to bring suit only against the entity charged with collection of that tax. . The Club asserts that a local tax directly conflicts with AS 05.15.150, which does not include "payment of local taxes" within its list of accept able uses for the proceeds of charitable gaming. However, that list also does not include payment of the state tax contained in AS 05.15.184. This provision serves as a general use restriction on the proceeds, and not as a ban on all gaming taxes. . See AS 05.15.100(a). . See AS 05.15.150(a) (restricting use of gaming proceeds to "political, educational, civic, public, charitable, patriotic, or religious uses"). . See AS 05.15.184. . While charitable gaming is the subject of a single chapter of Title 5 of the Alaska Statutes, nearly all of Title 16 is dedicated to regulation of commercial fishing. Title 16 contains detailed restrictions on commercial fishing activities, in-eluding licensing requirements for the taking of fish, see AS 16.05.330-710, and criminal penalties for violations, see AS 16.05.722-723. In addition, commercial fishing is subject to regulation and oversight by the Alaska Department of Fish and Game. . The definition of "adjusted gross income," by which operators of the games are evaluated and regulated, is "gross income less prizes awarded and state, federal, and municipal taxes paid or owed on the income." AS 05.15.690(1). . The Club argues that by enacting AS 05.15.184, the state has implicitly reserved the power to tax gaming operations to itself. This argument fails. AS 05.15.184 does not create a state power of taxation, but instead actually levies a tax. The statute makes no mention of any reservation of the power to tax such activities to the state alone. . In support of this argument, the Club contends that allowing the City to receive revenue from gaming would be to place the City "in the gambling business." However, the Club notes that the City conducts its own gaming operations. The City therefore already is in the "gambling business," and receives revenue from gaming wholly apart from its taxation of the Club. This argument therefore lends little weight to the Club's position. . The Club also contends that several factual disputes exist on this point that preclude a grant of summary judgment. However, the parties do not dispute the facts concerning what was published, but rather the legal consequences of those facts. .The Club also notes that "the Minutes did not reflect that the ordinance was read at the Public Meeting." This alleged error is of no greater significance than the claim concerning the typographical error. See 62 C.J.S. Municipal Corporations § 416(b) ("[N]oncompliance with merely formal requirements in the manner of enactment ordinarily is considered by the courts as no ground for declaring an ordinance void."). . The statute at issue was former AS 29.48.150, which outlined procedures for passage of local ordinances which are similar, but not identical, to the present requirements. . Even were we to conclude that the City's amended tax ordinance is invalid, the Club would be entitled to no relief. Prior to the 1993 amendment, the City's ordinance defined taxable "retail sales" to include "every sale or exchange of property, of every kind and description." Former Kotzebue Municipal Code 3.20.010. Property "of every kind and description" would include intangible property such as bingo and pull-tab entries. Id. Indeed, both the City and the Club apparently believed that the pre-amendment sales tax applied to the Club's activities. The City asserts that the amendment has no effect on its operations or collection of the tax. The Club does not dispute this claim, nor the City's claim that the Club regularly paid the tax prior to the amendment. The Club's challenge to the tax would therefore fail even if the amendment were invalid.

10381893

Timothy J. PUGIL, Appellant, v. Lisa Sue COGAR, Appellee

Pugil v. Cogar

1991-05-31

No. S-3571

1062

1068

811 P.2d 1062

811

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Timothy J. PUGIL, Appellant, v. Lisa Sue COGAR, Appellee.

Timothy J. PUGIL, Appellant, v. Lisa Sue COGAR, Appellee. No. S-3571. Supreme Court of Alaska. May 31, 1991. Linda M. Cerro, Rice, Volland & Gleason, Anchorage, for appellant. Matthew D. Jamin, Jamin, Ebell, Bogler & Gentry, Kodiak, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3181

19260

OPINION RABINOWITZ, Chief Justice. The central issue presented by this appeal concerns the superior court's determination of child support under Civil Rule 90.3. I. FACTS On March 2, 1988, Adria Dawn Cogar was born in Kodiak. Her parents were Lisa Cogar and Timothy Púgil. They never married, and at the time of Adria's birth, they no longer maintained a relationship. On March 10, 1988, Cogar sued Púgil for child support. Púgil did not contest his child support obligation. The suit proceeded to trial on the amount of child support. At the time of trial, in November 1988, Cogar was thirty-three years old and worked part time as a registered nurse in a Kodiak hospital. Her take-home pay was between $800 and $850 every two weeks. In addition to Adria, Cogar cared for her child from a former marriage, for whom she received child support from the child's father. Before her pregnancy with Adria, Cogar had worked more hours than at the time of trial. In this regard, Cogar presented testimony that she suffered from rheumatoid arthritis which prevented her from working full-time. At trial, Cogar's doctor testified that he had recommended that Cogar consider a career less demanding than hospital nursing. At the time of trial, Púgil was thirty-one years old. He had earned his living for the previous ten years by fishing and welding, mostly in Kodiak and other Alaska fishing ports, although he had spent some time working in Oregon's fishing industry. Púgil earned $29,377 in 1985, $44,446 in 1986, $53,845 in 1987, and $32,821 in 1988. The year 1987 was unusual in that Púgil worked almost every opening and was engaged in fishing for almost nine and a half months. 1988 was also unusual, however, because Púgil did not work several openings, even though his regular crew was actively fishing. At trial, Púgil testified that he wished to change careers. He stated that he was "burned out" on fishing and wanted a safer, less strenuous career. He testified that he had moved from Alaska back to El Paso, Texas, his original home, and now lived with his current girlfriend, who, at the time of trial, was pregnant. He further described his plans to attend New Mexico State University, to study engineering, and to pursue work as a welder in El Paso, where he expects to earn approximately $4.60 per hour. By attending school part-time year round, Púgil hoped to earn a degree in four years and to begin work as an engineer. At trial, Púgil requested that the superi- or court compute his child support obligation based on his prospective earnings as a welder in El Paso. Under the formula of Civil Rule 90.3, this would yield a child support obligation of approximately $125 per month. In its conclusions of law, the court held, it is Tim's earning capacity which I should consider in setting his child support obligation rather than what he actually chooses to make. He may, as a result of this order, choose to fish for a portion of each year, or do something else, but I find that considering the rele-vent [sic] factors under the court's decisions in Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987), and Patch v. Patch, 760 P.2d 526 (Alaska 1988), his unilateral decision to go to school should not affect his child support obligation. The superior court, noting the difficulty in computing income in the commercial fishing industry, chose to average Pugil's income over the years 1985, 1986, and 1987. Based on Civil Rule 90.3, the court calculated Pugil's child support obligation at $475.36 per month. After the superior court issued its decision, Púgil moved for reconsideration, arguing in part that the court "has locked Tim into continued employment in the fishing industry — precisely what the Supreme Court in Patch and Pattee cautioned the trial court against doing." The superior court denied Pugil's motion for reconsideration, treating the motion as a motion to amend findings under Civil Rule 59(a). In so ruling, the superior court stated that it has merely suggested that defendant may want to come to Alaska to commercial fish in the summers to earn the money necessary to help support himself and his child while he attends school. This does not lock him into the commercial fishing industry "during the minority of his . children" as warned against in Pattee, but rather contemplates a more realistic way of meeting his obligations during the expected four year duration of his schooling. The court entered a final judgment ordering child support of $447.67 per month, allowing an offset for life insurance purchased by Púgil naming Adria as beneficiary, and ordering Púgil to pay $3,500 in attorney's fees to Cogar. Púgil filed this appeal, asserting that the superior court erred by (1) relying on his "past extraordinary earnings" rather than "present wage-earning capacity" to compute child care, (2) failing to fairly apportion the support between the two parties, and (3) awarding attorney's fees to Cogar. II. DISCUSSION A. Did the Superior Court Err in Basing Pugil's Child Support Obligation Under Civil Rule 90.3 on His Potential Income Rather Than on His Present Earnings? Púgil argues that the superior court used the wrong income figure to calculate his child support obligation. He cites the commentary to Civil Rule 90.3, which explains that the time period for calculating income is based on the time when "the support is to be paid." Civil Rule 90.3, Commentary § III.E. Thus, "the relevant income figure is expected future income." Id. He claims that "expected future income" must be based on his present earnings. Púgil also argues that the superior court's child support award "locks" him in to commercial fishing, in violation of an express direction from this court to avoid such an outcome. See Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987). In Pattee, however, we held that it was an abuse of discretion for a trial court, without considering all the circumstances, to base its child support order on the existing income of a non-custodial father who voluntarily quit a well-paying job to return to school. Púgil recognizes that his reduction in income is also voluntary, but distinguishes himself from the parent in Pattee because he has returned to school in good faith, has explicit career goals, and is working while attending school. Púgil also acknowledges that we have held that a trial court has the discretion to refuse to reduce a child support order even in the face of an involuntary reduction in the obligor's income. Patch v. Patch, 760 P.2d 526, 529-30 (Alaska 1988). In Patch, we noted that even with an involuntary reduction in income, the superior court must consider all circumstances. There the temporary nature of the obligor's income reduction, combined with the obligor's assets, justified the superior court's continuance of the existing support order. 760 P.2d at 529-30. However, Púgil distin guishes Patch by noting that he has no assets and that his income reduction is not temporary. Cogar responds that the commentary to Civil Rule 90.3 contemplates courts using potential income, based on work history, qualifications, and job opportunities, to measure the income base for child support when the noncustodial parent is voluntarily unemployed or underemployed. See Civil Rule 90.3, Commentary § III.C. She notes that Pugil's underemployment is voluntary, as are a host of his decisions, each of which affects his financial situation. Moreover, Cogar argues that Pugil's reduction in income is temporary, and hence the superior court may properly ignore it under Patch. At the time of the child support order, Púgil was voluntarily unemployed. Moreover, Púgil had worked in an industry where employment and income were erratic. Therefore, the superior court properly used an average of Púgil's past income to determine Pugil's child support. See Civil Rule 90.3, Commentary § III.E. Moreover, at the time of the child support order, Pugil's plans were conjectural. He had no job in El Paso. He had not enrolled in school; he was unsure if he would study mechanical engineering or engineering technologies. Significantly, he testified that at the time of trial he had been off work from commercial fishing for only three weeks. Púgil further testified as to what a welder would make in El Paso. He asked the superior court to order child support based on those figures. Both Pattee and Patch stand for the proposition that "a trial court must consider all the circumstances of the change in employment to determine [child support]." Patch, 760 P.2d at 529; see also Pattee, 744 P.2d at 662. Pattee notes the tension between locking an obligor into a career and the burden that the obligor's career change places on the custodial parent and the child. 744 P.2d at 662. Pattee instructs that in attempting to resolve this dilemma, the trial court should examine all the relevant circumstances. Review of the record demonstrates that in the case at bar, the superior court considered the needs of the child, the ability of the custodial parent to meet those needs, Pugil's work history as a commercial fisherman and welder, his qualifications, and job opportunities. The superior court also considered Púgil's plans for education, which it called "laudable." However, after considering all the circumstances of Pugil's proposal and his obligation to his child, the court concluded that his plan "is not completely realistic." As an alternative, the superior court suggested that Púgil could both pursue his education and meet his obligation to support his child by commercial fishing during one quarter of the year. Concerning this issue, the superior court said the following: 4. Most importantly, Tim has made no showing that he cannot continue to work part time as a fisherman while pursuing his otherwise laudable efforts to acquire higher education. Given the responsibilities that Mr. Púgil has to Adria and to what will apparently soon be another child, and the ability he has to continue to make money as a part time commercial fisherman, his plan is not completely realistic. He has the capacity give[n] his substantial experience to fish during either the first quarter of the year during the crab fishery, or during the summer season with halibut or salmon, or even just tendering salmon, to make substantial amounts of money, and that employment should not significantly interfere with his studies.... 5. Under applicable precedent, it is Tim's earning capacity which I should consider in setting his child support obligation rather than what he actually chooses to make. He may, as a result of this order, choose to fish for a portion of each year, or do something else, but I find that considering the relevant factors under the court's decisions in Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987), and Patch v. Patch, 760 P.2d 526 (Alaska 1988), his unilateral decision to go to school should not affect his child support obligation. Pattee advises that the "trial judge (is) to consider the nature of the changes and the reasons for the changes, and then to determine whether, under all the circumstances" what the amount of support should be. The factors are the same whether it be in the initial computation of support or to determine if a modification is warranted. 6. I find that if Tim continued to work as a commercial fisherman, and was not returning to school, the best data of his prospective earning capacity is an average of the three years from 1985-1987, which yields a monthly obligation in the amount of $475.36. In light of these findings of fact, and after our study of the record, we conclude that the superior court considered all of the relevant circumstances and thus did not abuse its discretion in determining that Pugil's support obligation under Civil Rule 90.3 should be calculated using his potential income. B. Did the Superior Court Abuse its Discretion by Unfairly Apportioning the Burden of Child Support Between the Two Parties? Here Púgil raises an equitable argument. He notes that Cogar has equity of $7,500 in her home and that she already has an "advanced educational degree," while he has "no schooling beyond high school," no assets, and a $45,000 debt to the IRS. He considers it unfair that he should have to pay $447 per month child support. Based on his current income, he considers that an "impossible" burden. Cogar notes that she, who suffers from a debilitating disease, would have to retrain to work in a less demanding job. She believes that any less child support would require her to finance Pugil's education in violation of the edict of Pattee. 744 P.2d at 662. This court has previously held that "Rule 90.3 does not abrogate the general rule that a non-custodial parent is obligated to contribute only a fair share of the amount required to meet the reasonable needs of the parties' minor children." Coats v. Finn, 779 P.2d 775, 776 (Alaska 1989). Therefore, "when a party demonstrates that application of the rule's formula will produce and unfair result, common sense dictates that 'good cause' exists to depart from the formula." Id. at 777. Nevertheless, in Coats we noted that a party objecting to application of Civil Rule 90.3 must prove good cause by "clear and convincing evidence." Id. Our previously holding, that the superior court did not err in resorting to Pugil's earning capacity as the basis for determining his support obligation under Civil Rule 90.3, is dispositive of Pugil's equitable argument. Here Pugil's reduction in income was voluntary and temporary in nature. Upon consideration of all the evidence, we conclude that the superior court properly determined that the equities did not justify placing a greater burden of support on Cogar, the custodial parent. C. Did the Superior Court Abuse its Discretion by Awarding Attorney's Fees to Cogar? Púgil argues that the superior court erred by awarding attorney's fees to Cogar without correctly assessing the relative economic positions of the parties. Púgil asserts that Cogar "enjoys the more favorable economic condition." Cogar responds that the award of attorney's fees was justified because Púgil has had a larger income for the last several years and because he is in better health. An award of attorney's fees in a "ease between unmarried individuals . limited to issues of child custody and support" is "based on the relative economic situations and earning powers of the parties." Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989). The superior court considered Pugil's average adjusted income for the years 1985-87, $28,521, as a representative sample of Pugil's earning capacity. Cogar's adjusted income, based on the financial declaration she filed with the court, was $23,131. Co-gar provides the only custodial care for the parties' child, and she is physically impaired which limits her earning capacity. In these circumstances, we hold that an award of partial attorney's fees to Cogar was not an abuse of discretion. III. CONCLUSION The superior court did not abuse its discretion in its calculation of child support or in its grant of attorney's fees. AFFIRMED. . The parties do not dispute that the applicable formula for calculation of support in this case is found in Civil Rule 90.3. Civil Rule 90.3, in relevant part, provides, (a) Guidelines — Sole or Primary Physical Custody. A child support award in a case in which one parent is awarded sole or primary physical custody as defined by paragraph (f) will be calculated as an amount equal to the adjusted annual income of the non-custodial parent multiplied by a percentage specified in subparagraph (a)(2). (1) Adjusted annual income as used in this rule means the parent's total income from all sources minus: (A) mandatory deductions such as federal income tax, social security tax, mandatory retirement deductions and mandatory union dues; (B) child support and alimony payments arising from prior relationships which are required by other court or administrative proceedings and actually paid; and (C) work related child care expenses for the children who are the subject of the child support order. (2) The percentage by which the non-custodial parent's adjusted income must be multiplied in order to calculate the child support award is; (A) 20% (.20) for one child.... The Commentary to Civil Rule 90.3 provides in pertinent part, III. DEFINING INCOME C. Potential Income. The court may calculate child support based on a determination of the potential income of a parent who voluntarily is unemployed or underemployed. A determination of potential income may not be made for a parent who is physically or mentally incapacitated, or who is caring for a child under two years of age to whom the parents owe a joint legal responsibility. Potential income will be based upon the parent's work history, qualifications and job opportunities. The court also may impute potential income for non-income or low income producing assets. Civil Rule 90.3, Commentary § III.C. . Púgil paid no income tax between 1983 and 1987. Nevertheless, before trial, he had an accountant prepare what his income tax and FICA liability should have been for each of those years. At trial, Púgil estimated his accumulated liability to the IRS was $45,000, excluding penalties and interest. . After closely examining the record on Pugil's fishing activity for 1988, the superior court chose to ignore that year as an aberration. . In support of this motion, Púgil submitted documents containing new allegations of fact. He stated that he was now employed in El Paso, earning $6.00 per hour as a welder, that he had no resources or assets other than his pay, and that because of lack of funds he registered for only six credits for spring semester, making him ineligible for education loans. In a later affidavit, Púgil reported that his fiancee had given birth, that he now had additional debt from the cost of the birth, that he was completing his two courses at the university and expected to get an A and a B, and that he planned to take even more classes that summer. . The parties agree that both child support and attorney's fees are reviewed for an abuse of discretion. See Pattee, 744 P.2d at 662 (child support); Mann v. Mann, 778 P.2d 590, 592 (Alaska 1989) (attorney's fees). This court will find an abuse of discretion where it has a definite and firm conviction, based on the record as a whole, that a mistake has been made. Pattee, 744 P.2d at 662. Similarly, denial of a Civil Rule 59 motion to amend the findings of fact and conclusions of law will only be reviewed for an abuse of discretion. Nelson v. Jones, 781 P.2d 964, 968 (Alaska 1989), cert. denied, — U.S. -, 111 S.Ct. 44, 112 L.Ed.2d 20 (1990). . The superior court examined Cogar's income and living expenses, and concluded that she would need a contribution from Púgil of approximately $510 per month to meet Adria's needs. Púgil does not dispute this calculation.

10382696

CENTRAL CONSTRUCTION COMPANY, Manson Construction & Engineering Company, Osberg Construction Company and Ghemm Company, Inc., a joint venture, Petitioners, v. The HOME INDEMNITY COMPANY, Respondent

Central Construction Co. v. Home Indemnity Co.

1990-06-08

No. S-3486

595

600

794 P.2d 595

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

CENTRAL CONSTRUCTION COMPANY, Manson Construction & Engineering Company, Osberg Construction Company and Ghemm Company, Inc., a joint venture, Petitioners, v. The HOME INDEMNITY COMPANY, Respondent.

CENTRAL CONSTRUCTION COMPANY, Manson Construction & Engineering Company, Osberg Construction Company and Ghemm Company, Inc., a joint venture, Petitioners, v. The HOME INDEMNITY COMPANY, Respondent. No. S-3486. Supreme Court of Alaska. June 8, 1990. Rehearing Granted and Opinion Amended July 2, 1990. Michael C. Geraghty, Staley, DeLisio, Cook & Sherry, Inc., Anchorage, R. Jack Stephenson and Ian Rodihan, pro hac vice, Seattle, Wash., for petitioners. Robert J. Dickson and Jerome H. Juday, Atkinson, Conway & Gagnon, Anchorage, for respondent. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2856

17405

OPINION COMPTON, Justice. This petition arises out of a dispute between The Home Indemnity Company (Home) and CMOG over the handling of an insurance claim. CMOG sought discovery of certain documents from Home in connection with CMOG's counterclaim. Home refused to fully comply with CMOG's discovery request, asserting that the documents fall within the attorney-client privilege. The superior court denied CMOG's motion to compel discovery. It held that CMOG must make a prima facie showing that Home committed civil fraud before CMOG could overcome Home's claim of privilege. CMOG petitioned for review, Appellate Rule 402(a), arguing that (1) a prima facie showing of every element of civil fraud is unnecessary under the relevant law to overcome Home's claim of privilege, and (2) at the least, the superior court should have conducted an in camera hearing to determine the propriety of Home's claim of privilege. We granted the petition, Appellate Rule 402(b), and reverse the decision of the superior court. I. STATEMENT OF THE CASE In 1977 two workers, Robert Moloso and his son Joseph, were killed by a rockslide on a state highway construction project in Valdez. The Molosos' estates filed suit against the state alleging various theories for recovery. The state tendered the defense of the claim to its contractual indem-nitor, CMOG, which in turn tendered the defense of the claim to Home. CMOG had a $1 million primary coverage policy with Home and a $3 million dollar excess coverage policy with the Mission Insurance Group (Mission). Following trials, appeals and reversals in Moloso v. State, 644 P.2d 205 (Alaska 1982) (Moloso I) and Moloso v. State, 693 P.2d 836 (Alaska 1985) (Moloso II), the Moloso estates prevailed, obtaining a judgment eventually satisfied for $2.3 million. Prior to the Moloso estates obtaining the settlement money, however, Mission became insolvent and was unable to pay any part of the judgment. Home paid the entire judgment in response to demands from the Mo-loso estates and the state. Home filed suit against the state and CMOG, among others, claiming that there was no coverage under the policy and therefore it should be reimbursed its entire loss. Alternatively, Home sought reimbursement of the amount it paid in excess of $1 million, in addition to subrogation claims against other parties Home considered to be liable. In response to Home's suit, CMOG asserted that Home was acting in bad faith by denying coverage. To support this assertion, CMOG sought discovery of Home's entire claims file. Included in Home's response to the discovery request was an appendix identifying documents withheld on the basis of attorney-client or work product privileges. CMOG filed a motion to compel discovery or, at the least, to have the court or a special master conduct an in camera inspection of the documents to determine the propriety of the privileges claimed. Home opposed this motion. A special master was appointed who, after extensive briefing and a hearing, issued a recommendation that CMOG's motion to compel be denied. The master found that: (1) CMOG's unsupported contention that Home's privilege claims may be invalid is not sufficient to require an in camera review of the documents; (2) Home has the right to prepare for and maintain a coverage action against CMOG and the assertion of privileges is therefore fully available to Home; (3) because there is an adversarial relationship with respect to the coverage issue, the "joint client" exception to privilege assertions is not applicable; (4) United Serv. Auto. Ass'n v. Werley, 526 P.2d 28 (Alaska 1974), which explicitly left open the question whether the "crime or tort" or "crime or fraud" parameters of the exception to the attorney-client privilege is applicable in Alaska, id. at 32 n. 12, is no longer relevant because Alaska Evidence Rule 503(d)(1) adopted the narrower "crime or fraud" exception; (5) because CMOG did not plead or allege fraud, CMOG's motion to compel should be denied without prejudice; (6) even if CMOG were allowed to amend its pleadings, it failed to meet its burden of proving a prima facie case of fraud against Home; and (7) CMOG's briefing of the work product exception was insufficient as it did not show that CMOG is "unable without undue hardship to obtain the substantial equivalent of the materials by other means" as required by Alaska Civil Rule 26(b)(3). The superior court adopted the analysis and recommendation of the special master. Additionally, the superior court granted Home a protective order and directed CMOG to amend its answer and counterclaim to include assertions of fraud. CMOG petitioned for review. II. DISCUSSION Subsequent to our grant of CMOG's petition for review, the superior court granted CMOG's motion for summary judgment on other grounds, ruling that Home was es-topped to deny coverage for the loss at issue. As a result of this ruling, the issue before us may be technically moot. Nevertheless, because of the recurring nature and importance of the issue, we address it. See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985) (mootness determination ultimately left to discretion of the court); State v. Thompson, 612 P.2d 1015, 1016 (Alaska 1980) (recurring nature of problem is valid justification for reviewing technically moot issue). A. SCOPE OF THE TERM "FRAUD" FOR PURPOSES OF THE CRIME OR FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE. CMOG argues that the superior court erred in relying on the special master's conclusion that Werley is no longer good law. CMOG points out that Munn v. Bristol Bay Hous. Auth., 777 P.2d 188 (Alaska 1989), reaffirmed the validity of Werley. Id. at 195. Additionally, CMOG asserts that neither Munn nor Werley defined "civil fraud" in as stringent a manner as the superior court in this case. CMOG argues that "fraud," as the term is used in Alaska Evidence Rule 503(d)(1), is defined broadly. CMOG asserts that Munn supports the proposition that fraud includes situations where there is a "bad faith purpose" for a party's actions. See id. CMOG cites the Evidence Rules commentary in support of its view that the court should focus on Home's intentional or reckless disregard of CMOG's rights. The commentary to Alaska Rule of Evidence 503(d)(1) cites 8 J. Wigmore, Evidence § 2298 (J. McNaughton rev. 1961) for the proposition that the attorney-client privilege "does not extend to advice in aid of future wrongdoing." CMOG is correct in its statement that neither Munn nor Werley defined "civil fraud" in as stringent a manner as the superior court or Home suggests. The adoption of Alaska Evidence Rule 503(d)(1) is not indicative of this court's intent to use a narrow "crime or fraud" standard. We do not now, nor have we ever deemed it permissible for a client to use the attorney-client privilege to exclude from discovery "advice in aid of future wrongdoing." See Commentary to Alaska Rule of Evidence 503(d)(1); see also 8 J. Wigmore, Evidence § 2298 (J. McNaughton rev. 1961); Munn, 777 P.2d at 194; Werley, 526 P.2d at 32. Consequently, we decline to accept Home's argument that "crime or fraud" should be narrowly defined, and hold that services sought by a client from an attorney in aid of any crime or a bad faith breach of a duty are not protected by the attorney-client privilege. See, e.g., Werley, 526 P.2d at 33 ("[w]hen an insurer through its attorney engages in a bad faith attempt to defeat . the rightful claim of its insured, invocation of the attorney-client privilege for communications pertaining to such bad faith dealing seems clearly inappropriate") (footnote omitted). "Acts constituting fraud are as broad and as varied as the human mind can invent. Deception and deceit in any form universally connote fraud. Public policy demands that the 'fraud' exception to the attorney-client privilege . be given the broadest interpretation." In re Callan, 122 N.J.Super. 479, 300 A.2d 868, 877 (Ch.Div.1973), aff'd, 126 N.J.Super. 103, 312 A.2d 881 (App.Div.1973), rev'd on other grounds, 66 N.J. 401, 331 A.2d 612 (1975) (interpreting New Jersey Evidence Rule 26 which is substantially equivalent to Alaska Evidence Rule 503(d)(1)). The policy of promoting the administration of justice would not be well served by permitting services sought in aid of misconduct to be cloaked in the attorney-client privilege. See id. at 878; Fellerman v. Bradley, 99 N.J. 493, 493 A.2d 1239, 1245 (1985). See also 8 J. Wigmore, Evidence § 2298 at 577 (J. McNaughton rev. 1961) (the attorney-client privilege should not "protect a deliberate plan to defy the law and oust another person of his rights, whatever the precise nature of those rights may be"); E. Cleary, McCormick on Evidence § 95 at 229 (3d ed. 1984) ("it would be a perversion of the privilege to extend it to the client who seeks advice to aid him in carrying out an illegal or . fraudulent scheme"). B. IN CAMERA REVIEW. The next question is whether the "crime or fraud" showing must be made with evidence entirely independent of the communications at issue. In answering this question we must examine the role of in camera inspections in determining the validity of a claimed privilege. A balance must be reached between allowing in camera review based on a party's unsupported assertions that the "crime or fraud" exception applies, and requiring a party to meet the same quantum of proof for in camera inspections as would ultimately be necessary to overcome the privilege. This balance is struck by requiring a lesser evidentiary showing for allowing in camera inspection than is required ultimately to overcome the privilege. In United States v. Zolin, — U.S. -, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989), the Supreme Court was faced with much the same issue as that presented to us. The Supreme Court struck a balance between too much judicial inquiry, which "would force disclosure of the thing the privilege was meant to protect," and "a complete abandonment of judicial control [which] would lead to intolerable abuses." Id. 109 S.Ct. at 2630 quoting United States v. Reynolds, 345 U.S. 1, 8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953). The Court stated: Before engaging in in camera review to determine the applicability of the crime-fraud exception, "the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person," . that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies. Id. 109 S.Ct. at 2631 (citation omitted). The Court further stated: Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court. The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relevant importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply. The district court is also free to defer its in camera review if it concludes that additional evidence in support of the crime-fraud exception may be available that is not allegedly privileged, and that production of the additional evidence will not unduly disrupt or delay the proceedings. Id. We think the balance struck by the Supreme Court is a prudent one, and thus adopt it for use by our courts. Whether an in camera inspection is the proper method in this case to determine if CMOG can make a prima facie case of bad faith on Home's part is another question. First, Home knew of the exclusion in the policy from the beginning. Prior to deciding whether to accept the tender of defense, Home's own territorial supervisor stated that she "did not recognize any coverage defenses.... " CMOG asserts that it "relaxed its vigil" once the tender was accepted by Home. CMOG states that it had no idea Home was considering a coverage defense until after Moloso I, at which time Home sent CMOG a reservation of rights letter. Home justified the time lapse between accepting the tender and sending the reservation of rights letter by implying that it did not become aware of the possible applicability of exclusion (b) until August 12, 1982. CMOG, however, cites to the record to show that Home was considering the coverage issue prior to August 12, 1982. The record includes correspondence, dated June 29, 1982 through July 28, 1982, which discuss the coverage issue and concludes that a reservation of rights letter should be sent immediately. CMOG promptly rejected Home's reservation of rights, a position with which Home's own claims manager agreed. Home never responded to CMOG's rejection. It was at this point, CMOG asserts, that the conflict of interest began. CMOG asserts that it was deliberately kept in the dark about the litigation so that Home could exercise sole control over the process. If Home lost it would assert a coverage defense. CMOG argues that this fall-back position gave Home confidence that it need not accept a reasonable settlement because it could always assert a coverage defense. As a result, CMOG asserts that Home "substantially understated the fair settlement value of the ease," thus passing up opportunities for settlement and acting adversely to CMOG's interest. If true, this would, in our view, constitute a bad faith breach of Home's duty to defend the suit in the best interest of the insured. Home contends that the fact that it waited so long to bring the coverage action is not evidence of fraud, because the time period was necessary to present a "united front" in defense of the claims. Additionally, according to Home, the admittedly "late reservation of rights" letter is not evidence of fraud, because (1) it is not clear that a letter would be required in order for Home to assert a coverage defense, and (2) if Home had really wanted to defraud CMOG, it would have relied on the letter in refusing to pay the Moloso judgment. Home additionally asserts that the settlement negotiations do not offer evidence of fraud chiefly because the Molosos "never once offered or even implied that they would settle for an amount within The Home's policy limits." Home also asserts that its purported "failure to communicate" with CMOG about developments concerning the case is not evidence of fraud because Home did communicate with the attorney for the state and had no reason to believe that the attorney would not also report to CMOG. We conclude that CMOG has adequately presented a factual basis to "support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies." Zolin, 109 S.Ct. at 2631. Home's seemingly belated reservation of rights letter and its actions after the letter was sent are sufficient to compel this conclusion. At the least, CMOG should have been kept informed about the status of the case and any ongoing negotiations so that it could protect its interests. The decision of the superior court is REVERSED. . CMOG is a joint venture comprised of Central Construction Co., Manson Construction & Engineering Co., Osberg Construction Co., and GHEMM Construction Co. There is some question as to whether Ferrante Construction Co. is a member of this joint venture. The issue, however, is not material for purposes of this appeal. . Alaska Evidence Rule 503(d)(1) provides: (d) There is no privilege under this rule: (1) Furtherance of Crime or Fraud. If the services of the lawyer were sought, obtained or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud,.... . The exclusion reads: This insurance does not apply: (b)(1) if the insured is an architect, engineer or surveyor, to bodily injury or property damage arising out of professional services performed by such insured, including (i) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, and (ii) supervisory, inspection or engineering services; (2) if the indemnitee of the insured is an architect, engineer or surveyor, to the liability of the indemnitee, his agents or employees, arising out of (i) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or (ii) the giving of or the failure to give directions or instructions by the indemnitee, his agents or employees, provided such giving or failure to give is the primary cause of the bodily injury or property damage; .

10356872

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

Williams v. State

1991-12-13

No. A-3435

1

6

823 P.2d 1

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

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

David WILLIAMS, Appellant, v. STATE of Alaska, Appellee. No. A-3435. Court of Appeals of Alaska. Dec. 13, 1991. Susan Orlansky, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Shelley K. Chaffin, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2421

15416

OPINION BRYNER, Chief Judge. David Williams appeals his conviction of first-degree murder, contending that the trial court erred in denying his motion to suppress evidence and that the evidence at his trial was insufficient. We affirm. Williams and Deborah Goodlataw were drinking heavily on the night of December 30-31, 1988, in the apartment they shared in Anchorage. Williams became angry and assaulted Goodlataw. At approximately 2 a.m., Williams called his former foster mother, Carolyn Hanthorn, and told her that he thought he had killed Goodlataw. Williams said he was not sure where he was. Hanthorn reported Williams' call to the police. She told the police that she did not know where Williams and Goodlataw lived. She said that, a week previously, she had dropped them off at an apartment building at 200 McCarrey Street, but she was not sure if they lived there or were just visiting friends. Hanthorn also apparently told the police that Goodlataw and Williams might have a baby with them. Between 3 a.m. and 9 a.m. that morning, the police unsuccessfully checked five or six locations where they thought Williams and Goodlataw might be, including the McCarrey Street area. At 9:30 a.m., Officer Audie E. Holloway returned to 200 McCarrey Street and inquired in the manager's office concerning Goodlataw and Williams. He learned that they were renting apartment number two. As Holloway approached apartment two, he saw clothing on the ground outside the bedroom window. He also saw several reddish-brown stains, which appeared to be blood, on the steps leading to the door of the apartment. Holloway knocked several times and identified himself. He could hear music playing inside the apartment, but nobody answered the door. Concerned that Goodlataw might be injured and require medical attention, Holloway secured a passkey from the manager's office and returned to the apartment. After knocking again and receiving no response, he entered. In the bedroom, he found Goodlataw, dead. Blood was spat tered throughout the room. Injuries visible on Goodlataw's face made it apparent that she had been beaten. Subsequent investigation led to Williams' arrest. Prior to trial, Williams moved to suppress evidence derived from Holloway's entry of apartment number two. He argued that the warrantless entry was improper. The superior court denied Williams' motion, finding the entry to be justified under the emergency aid doctrine. Williams claims that the superior court erred. The emergency aid doctrine is a well recognized exception to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Schraff v. State, 544 P.2d 834, 840-41 (Alaska 1975); Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App.1982). Under the doctrine, the warrantless entry of a dwelling is allowed when an officer has reasonable grounds to believe that there is an immediate need to take action to prevent death or to protect persons or property from serious injury. Gallmeyer, 640 P.2d at 841-43. For the emergency aid doctrine to be applicable in a given case, three conditions must be met: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis approximating probable cause to associate the emergency with the area or the place to be searched. Id. at 842. See also Johnson v. State, 662 P.2d 981, 985-86 (Alaska App.1983) (listing eleven factors relevant in determining if the emergency aid doctrine applies). Here, Williams focuses his argument on the first and third of these conditions. With respect to the first condition — reasonable grounds to believe that there was an emergency — Williams insists that no need for immediate action existed under the circumstances because the police were acting on a report that Williams had killed Goodla-taw, and not on information that Goodla-taw was injured. Moreover, the report had been made approximately eight hours before the search. It is well settled, however, that an emergency may propérly be found even when it is "much more probable that the victim is dead than that [s]he is still alive." 2 W.R. LaFave, Search and Seizure § 6.6(a) at 700 (2d ed. 1987) (footnotes omitted). Based on the uncertain nature of the information that Williams gave to Hant-horn and that Hanthorn passed along to the police, Holloway believed that "there was just as much a chance of there being a body in there as there would be somebody in there still alive." This belief was not unreasonable. Under analogous circumstances, the Wisconsin Supreme Court has stated: "Frequently, the report of a death proves inaccurate and a spark of life re-mains_" State v. Kraimer, 99 Wis.2d 306, 298 N.W.2d 568, 578 (1980). Moreover, in the present case, Holloway had been advised that Williams and Goodlataw might have an infant with them. Considering the totality of the circumstances, the superior court was not clearly erroneous in finding reasonable grounds to believe that an emergency existed requiring immediate intervention. As to the third condition of the emergency aid doctrine — some reasonable basis to associate the emergency with the place searched — Williams again focuses on the length of time that elapsed between the initial report of a possible homicide and Holloway's entry of apartment number two. According to Williams, even if there was reason to believe Goodlataw may have been injured and at home when Williams first called Hanthorn, the belief was no longer reasonable eight hours later. The passage of time, however, though relevant to the possible existence of an emergency, is not determinative. State v. Beaumier, 480 A.2d 1367, 1373 (R.I.1984). In deciding that an emergency might exist in Williams and Goodlataw's apartment, Holloway acted on more than just the initial report of a possible homicide. In addition, he observed apparent blood stains on the steps of the apartment and saw clothing strewn about the yard outside the window. Although Holloway heard music from within the apartment, no one answered the door. The superior court was not clearly erroneous in concluding that these observations, combined with the initial report of a possible homicide, provided a reasonable basis to associate the emergency with the apartment. There is no indication that Holloway's entry of the apartment was primarily motivated by an intent to seize evidence or make an arrest, the remaining condition for applying the emergency aid doctrine. Accordingly, we conclude that the superior court properly found the emergency aid doctrine applicable. Williams next contends that insufficient evidence was presented at trial. Specifically, he argues that the state failed to establish the cause of Goodlataw's death with adequate certainty to permit conviction. Evidence is sufficient to submit to the jury when the record as a whole, considered in the light most favorable to the state, would permit reasonable jurors to differ on the question of whether guilt has been established beyond a reasonable doubt. Bush v. State, 397 P.2d 616, 618 (Alaska 1964); Brown v. State, 693 P.2d 324, 328 (Alaska App.1984). The dispute in the present case centers on the issue of causation. Williams does not challenge the sufficiency of the evidence establishing that he assaulted and injured Goodlataw. Rather, he contends that there was inadequate evidence to prove that the injuries he inflicted to Good-lataw caused her death. The state's primary witness on causation was Dr. Michael Propst, the forensic pathologist who examined Goodlataw's body. According to Propst, the autopsy he performed revealed multiple blunt-force external injuries to Goodlataw's face and head, indicating that she had recently been beaten. These injuries corresponded to potentially fatal internal injuries to Goodlataw's brain. Propst further testified, however, that his autopsy revealed that Goodlataw's blood alcohol content at death was .665 percent, a potentially lethal level. According to Propst, either the blunt-force injuries or the alcohol, standing alone, might have been survivable, but either might also have been fatal. Although Propst was unable to prioritize between the injuries and the alcohol in terms of their relative significance, he expressed the opinion that the two combined to cause Goodla-taw's death. Propst believed that even if Goodlataw could not have survived the alcohol she consumed, her injuries would have been a "significant contributing factor" in her death. Propst specifically expressed the opinion that Goodlataw's injuries "definitely" contributed to her death. When pressed on cross-examination as to whether he was convinced to a reasonable medical certainty that Goodlataw's injuries contributed to her death, Propst answered: "Yes, I am. In my opinion the blunt force injuries played at least a role in the death." Pressed again on the issue of reasonable medical certainty on re-direct examination, Propst reiterated: "In my opinion the blunt force injuries that Deborah Goodlataw received were a cause of her death." In response to Propst's testimony, Williams called Dr. Michael Clark, another pathologist, who testified that, in his opinion, Goodlataw would likely have died as the result of the alcohol she ingested, regardless of whether she had • sustained physical injuries. Although acknowledging that her injuries would have hampered her ability to survive the alcohol to at least some extent, Clark characterized them as unlikely to have resulted in death in and of themselves. The state countered Clark's testimony by calling Drs. Donald Rogers and Richard Brodsky on rebuttal. Rogers, also a forensic pathologist, echoed Propst's view that both the alcohol and the blunt-force injuries had combined to cause Goodlataw's death. Rogers also expressed the belief that the amount of alcohol Goodlataw had consumed was potentially survivable. Brod-sky, an Anchorage physician with experience in providing emergency care for persons with elevated blood alcohol levels, corroborated the view that Goodlataw could potentially have survived had she not been beaten. Viewing the totality of this evidence in the light most favorable to the state, we believe that reasonable jurors could have concluded that the state met its burden of proof on the element of causation. The state was under no obligation to prove that the injuries Williams inflicted were the sole cause of Goodlataw's death: A criminal defendant can be held responsible only for injuries that "result from" or are "caused by" his conduct. But the defendant's conduct need not be the sole factor in producing the injury. Rather, the test is whether the defendant's conduct was a "substantial factor" in bringing about the result. State v. Malone, 819 P.2d 34, 36 (Alaska App., 1991) (citations omitted). The expert testimony at trial strongly supported the conclusion that Goodlataw's death resulted from the combined effects of alcohol and her blunt-force injuries. While neither Propst nor Rogers could pinpoint the importance of the injuries vis-a-vis the alcohol, both clearly viewed them as a substantial causal factor. Propst explicitly framed his opinion on this issue in terms of reasonable medical certainty. Given these circumstances, Williams' reliance on Jennings v. State, 404 P.2d 652, 654 (Alaska 1965), is misplaced. In Jennings, the Alaska Supreme Court indicated, in passing, that a judgment of acquittal would be appropriate in a case where the state failed to show which of two alternative potential causes actually resulted in the victim's death. In contrast, when the evidence in the present case is viewed in the light most favorable to the state, it establishes that Goodlataw's death resulted not from one of two mutually exclusive causes but rather from the combined effect of alcohol and blunt-force injuries. In fact, the circumstances of this case are virtually indistinguishable from those considered by the Alaska Supreme Court in Armstrong v. State, 502 P.2d 440, 443-46 (Alaska 1972). In Armstrong, the victim died of asphyxia as a direct result of a deep state of unconsciousness. Expert testimony indicated that the victim had suffered a severe beating and was also severely intoxicated. The state's expert witness was unable to say which factor was more significant in producing the unconscious state that resulted in death, but he believed both had played a significant role. In affirming the conviction, the court in Armstrong rejected an argument similar to Williams', holding: In this case expert testimony served to reveal the physiological relationships relevant to [the victim's] death; once these were explained, the jury was competent to make an independent determination of cause of death on the basis of all relevant evidence before it. Our study of the record of the trial below convinces us that sufficient evidence was produced to present a jury question on the issue of cause of death. Expert testimony presented by both parties established asphyxiation as the primary cause of death. Dr. Rogers indicated a causal connection between the beating and asphyxiation, namely as a factor which, along with extreme intoxication, contributed to the depth of the reflex-inhibiting unconsciousness. Even the defense expert witness . admitted that the head injuries were a "minor" contribution to [the victim's] death, being sufficient to "cause a certain additional grogginess.... " Additionally, the jury had before it the testimony of Officer Moerlins who detailed the condition of the trailer and deceased as he found them. The extent of the beating suffered by [the victim] was also illustrated by photographs. Viewed most favorably to the state, this evidence was sufficient to permit the jury to conclude, with the strength of conviction required for a guilty verdict, that the acts of appellant contributed to [the victim's] demise. Id. at 446 (footnote omitted). The conclusion reached by the supreme court in Armstrong is equally applicable here. We hold that the trial court did not err in denying Williams' motion for a judgment of acquittal. The conviction is AFFIRMED. . A dissent by two justices in Armstrong agreed with the majority's view of the applicable law of causation but found the expert testimony at trial equivocal on the issue of whether the victim's unconsciousness resulted from the joint effects of alcohol and the assault-related injuries. Id. at 452. Because we find unequivocal evidence in the present case to support the view that Goodlataw's death resulted from the combined effect of alcohol and assault-related injuries, Williams' claim would not succeed, even under the dissenting opinion in Armstrong.

10419787

Daniel MIESSNER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Miessner v. Municipality of Anchorage

1983-12-23

No. 7696

285

287

673 P.2d 285

673

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

Daniel MIESSNER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Daniel MIESSNER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 7696. Court of Appeals of Alaska. Dec. 23, 1983. Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. James A. Crary, Asst. Mun. Prosecutor, Allen M. Bailey, Mun. Prosecutor, and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1057

6589

OPINION COATS, Judge. Daniel Miessner was convicted of violating a municipal ordinance for leaving the scene of a non-injury accident. He appeals that conviction to this court, arguing that his conviction was based on inadmissible hearsay testimony and that admission of the hearsay testimony violated his constitutional right to confront the witnesses against him. U.S. Const, amend. VI and Alaska Const, art. I, § 11. We reverse Miessner's conviction. The evidence presented at trial can be stated briefly as follows. At approximately 5:00 o'clock on the morning of December 12, 1981, Officer William Shore contacted the defendant, Daniel Miessner, at a drinking establishment on the Old Seward Highway, after observing unusual behavior on Miessner's part. Miessner was crouched down by the back of a medium green four-door Mercury, Alaska license ACE 664. Officer Shore observed a strong odor of alcohol on Miess-ner's breath; Miessner was unsteady on his feet; his speech was slurred; his motions were hesitant. At trial Miessner stipulated that he was intoxicated at the time. When Officer Shore ran a registration check on ACE 664, Officer Mosher came on the channel and indicated that perhaps ACE 664 and its apparent occupant had been involved in an accident at Chilkoot Charlie's earlier that morning. Officer Shore testified that he and Officer Mosher later observed what appeared to be blue smeared paint on the left rear area of ACE 664. There was also a smear on the right front bumper and a gouge in the right rear door and right rear quarter area of the vehicle. The smear on the right front was not paint but where road film and dirt had been removed. Miessner indicated to Officer Shore that he had driven the car earlier that evening, but denied he had been at Chilkoot Charlie's and denied having struck another vehicle. Officer Mosher took the stand to testify about the accident investigation he conducted at Chilkoot Charlie's on December 12, 1981. Mosher was dispatched at 2:45 a.m. and arrived at Chilkoot Charlie's at 2:50 a.m. Mosher estimated that the accident occurred at 2:30 a.m. He contacted the owners of two vehicles which had been struck and an alleged eyewitness to the accident, Tyrone Tucker. When he was contacted by Mosher, Tucker was seated in his van directly behind one of the vehicles which had been hit. Mosher testified, over defense objections, that Tucker stated the vehicle which hit the other two cars was a light colored 1974-76 Ford, license plate ACE 664. According to Mosher, Tucker said that the only occupant of that vehicle was the driver, who was male. Tucker claimed to have seen the collision right in front of his van and described how it occurred. Officer Mosher also testified that he later observed a paint transfer on Miess-ner's car which corresponded to the paint color of one of the vehicles which had been struck in the Chilkoot Charlie's parking lot. Another police officer, Officer Provost, testified that he contacted Meissner at the police station on December 12 and Miessner denied that he had been driving. Based upon this evidence, Judge John Mason convicted Miessner of leaving the scene of a non-injury accident. Miessner's argument on appeal is that the hearsay testimony of Tyrone Tucker was improperly admitted. Judge John Mason allowed the testimony under Alaska Rule of Evidence 803(23) which provides the follow ing generalized exception to the hearsay rule: Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. We conclude that the trial court erred in allowing Tucker's hearsay testimony. The residual exception to the hearsay rule was designed to be "used very rarely, and only in exceptional circumstances." E.R.C. 246. Tucker's testimony was obviously important since he was allegedly the only eyewitness to the collision and his testimony was critical to Meissner's conviction. The confrontation clauses of the United States and Alaska Constitutions and the rules governing the admission of hearsay testimony clearly favor the presentation of firsthand testimony of critical witnesses at trial so that these witnesses may be cross-examined. There do not appear to have been any particular guarantees of the trustworthiness of this testimony. Therefore, it is reasonable to assume that cross-examination would have been important to fairly weigh Tucker's testimony. As Judge Mason pointed out, a person who is parked outside of Chilkoot Charlie's at three in the morning comes with no built-in guarantees of credibility. Furthermore, Evidence Rule 803(23) provides that hearsay testimony is to be offered only when "the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." We believe that, given the preference for firsthand testimony and the critical nature of Tucker's testimony, it was incumbent on the prosecution to show that substantial efforts had' been made to obtain Tucker's testimony at trial before it could resort to Evidence Rule 803(23). The record in this case simply does not show that the prosecution made diligent efforts to obtain Tucker's testimony or that he was unavailable. See Green v. State, 579 P.2d 14, 18 (Alaska 1978). Accordingly we believe Tucker's testimony was improperly admitted, and we REVERSE Miessner's conviction.

10412692

Fred RICHARDSON and Jill Richardson, Appellants, v. FAIRBANKS NORTH STAR BOROUGH, Appellee

Richardson v. Fairbanks North Star Borough

1985-08-30

No. S-391

454

457

705 P.2d 454

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Fred RICHARDSON and Jill Richardson, Appellants, v. FAIRBANKS NORTH STAR BOROUGH, Appellee.

Fred RICHARDSON and Jill Richardson, Appellants, v. FAIRBANKS NORTH STAR BOROUGH, Appellee. No. S-391. Supreme Court of Alaska. Aug. 30, 1985. Thomas R. Wickwire, Fairbanks, for appellants. Chris Bataille, Asst. Borough Atty., Michael B. Markham, Acting Borough Atty., for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1207

7646

OPINION MOORE, Justice. This case concerns the proper measure of damages for the death of a pet dog caused by a municipality's negligence. The Fairbanks North Star Borough Animal Shelter (hereafter Borough or pound) violated a Borough ordinance and mistakenly killed the Richardsons' pet dog, Wizzard. The Richardsons had owned the dog for about two months. At trial the superior court limited the damage award to the dog's market value or replacement cost. The Rich-ardsons appeal the measure of damages applied by the court. We affirm. I. FACTS AND PROCEEDINGS After an unsuccessful search for their missing dog, the Richardsons called the pound. A pound employee confirmed that the pound had the dog and informed the Richardsons that they could redeem their dog between 8:00 a.m. and 5:00 p.m. The Richardsons went to the pound after work that day, arriving at 4:50 p.m. Although they could see their dog chained in the back of the pound, the employees refused to let them in because the pound was closed. The following day the Richardsons left work early. When they arrived at the pound, they were told that their dog had been killed. The Richardsons sued the Borough. Under a Borough ordinance the pound was supposed to keep dogs seventy-two hours before killing them. However, the pound mistakenly killed the Richardsons' dog during its second day of impoundment. The Borough employee in charge of the pound, Robert Spencer, admitted that the Borough violated its own policy by failing to keep accurate records. In a pretrial ruling, the superior court ruled that since liability was already established, the sole issue was the value of the dog. The court limited the measure of damages to the dog's fair market value or replacement cost. The Richardsons rejected the Borough's $2,000 offer of judgment and went forward with the trial despite its limited scope. After the jury awarded the Richardsons $300, the court awarded the Borough costs and attorney's fees totaling $3,763 pursuant to Civil Rules 68 and 82. The Richardsons appealed. II. DISCUSSION At trial and on appeal the Richardsons raised five issues. They argued that when formulating the damage award the jury should have been allowed to consider (1) Wizzard's value as a pet, (2) their emotional pain and suffering, (3) punitive damages, (4) whether the Borough's act was an eminent domain taking, and (5) whether they were public interest litigants. The superior court correctly held that the Richardsons' subjective estimation of Wizzard's value as a pet was not a valid basis for compensation. Since dogs have legal status as items of personal property, courts generally limit the damage award in cases in which a dog has been wrongfully killed to the animal's market value at the time of death. Green v. Leckington, 192 Or. 601, 236 P.2d 335, 337 (1951). In cases involving working dogs, especially those of mixed lineage without a marketable pedigree, courts have based the damage award on the dog's utility. See Paguio v. Evening Journal Ass'n., 127 N.J.L. 144, 21 A.2d 667, 668 (1941). However, a minority of jurisdictions have recognized that these limited damage awards are not commensurate with the loss suffered by an owner when a pet is maliciously killed. See La Porte v. Associated Independents, Inc., 163 So.2d 267, 269 (Fla.1964). The Richardsons also seek compensation for their mental and emotional suffering. We recognize that the loss of a beloved pet can be especially distressing in egregious situations. Therefore, we are willing to recognize a cause of action for intentional infliction of emotional distress for the intentional or reckless killing of a pet animal in an appropriate case. See Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (1985) (owners allowed to bring claim for intentional infliction of emotional distress after alleging that defendant negligently or recklessly shot and killed their donkey, causing them to suffer extreme mental anguish and trauma). The Restatement (Second) of Torts, § 46(1) (1965) establishes the elements of a claim of intentional infliction of emotional distress. The offending party, through extreme or outrageous conduct, must intentionally or recklessly cause severe emotional distress or bodily harm to another. We hold that the trial judge should make a threshold determination whether the severity of the emotional distress and the conduct of the offending party warrant a claim of intentional infliction of emotional distress. The actor's offensive conduct must be very similar to that which would sustain a claim for punitive damages. The judge's threshold determination on these issues will not be overturned absent an abuse of discretion. In this case the Richardsons made an offer of proof regarding their emotional distress. The evidence in the record indicates that the trial judge properly made a threshold determination that the severity of the Richardsons' emotional distress did not warrant a claim of intentional infliction of emotional distress. Therefore, we affirm the lower court's ruling on this issue. AFFIRMED. . We agree with the majority of jurisdictions that hold that punitive damages cannot be awarded against a municipality without statutory authorization. See 18 E. McQuillin, Municipal Corporations, § 53.18a, at 220-21 (3d ed. 1984); Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S.Ct. 2748, 2759-2760, 69 L.Ed.2d 616, 632 (1981). This does not preclude the imposition of punitive damages against a private defendant in a similar case. See Levine v. Knowles, 197 So.2d 329 (Fla.Dist.App.1967) (owner was entitled to punitive damages if he could establish that despite instructions to hold his dog's body, the veterinarian willfully cremated it to avoid the consequences of autopsy and a probable malpractice claim). . This argument is without merit. In mistakenly killing Wizzard, the Borough negligently exercised its police powers. This act did not constitute an eminent domain taking. See 1 J. Sack-man, Nichols' The Law of Eminent Domain, § 1.42[2] (rev. 3d ed. 1981). . Policy issues aside, there was sufficient monetary incentive to bring this case. Therefore, the Richardsons were not public interest litigants. They must bear the Borough's costs and attorney's fees as correctly awarded by the trial court pursuant to Civil Rules 82 and 68. See Kenai Lumber Co., Inc. v. LeResche, 646 P.2d 215, 222-23 (Alaska 1982). . Judges regularly make similar threshold determinations when ruling on the question of punitive damages. See Alyeska Pipeline Service Co. v. O'Kelley, 645 P.2d 767, 773-74 (Alaska 1982). . See Restatement (Second) of Torts, § 46 comment d (1965); Alyeska Pipeline Service Co. v. O'Kelley, 645 P.2d at 773-74. . The lower court erred in ruling that the Rich-ardsons were precluded from presenting evidence on their emotional distress because they did not provide expert medical testimony to substantiate their claim. Expert medical testimony may be the most effective method of demonstrating the existence of severe emotional distress, but it should not be the exclusive means of ascertaining a party's mental state. The trial court's error was harmless because the severity of the Richardsons' emotional distress did not warrant a claim of intentional infliction of emotional distress.

10412592

Ralph R. STEFANO, C. Harold Gillam, and Estate of Robert L. Crow, Appellants, v. Patricia M. COPPOCK, Appellee

Stefano v. Coppock

1985-08-23

No. S-453

443

446

705 P.2d 443

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Ralph R. STEFANO, C. Harold Gillam, and Estate of Robert L. Crow, Appellants, v. Patricia M. COPPOCK, Appellee.

Ralph R. STEFANO, C. Harold Gillam, and Estate of Robert L. Crow, Appellants, v. Patricia M. COPPOCK, Appellee. No. S-453. Supreme Court of Alaska. Aug. 23, 1985. David Shimek, Shimek & Peabody, Anchorage, for appellants. Olof K. Hellen, Hellen, Partnow & Con-don, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1586

10059

OPINION MOORE, Justice. This is an appeal from a superior court judgment in favor of a minority shareholder's claim of fraud and oppression by the controlling shareholders of a closely held corporation. As a remedy, the superior court ordered the controlling shareholders to buy out the minority shareholder's stock based on its "fair and equitable value." I. SUMMARY OF FACTS AND PROCEEDINGS In 1961 Stefano, Gillam and Crow (hereinafter "the shareholder-directors") formed Alaska Plastics, Inc.; each held 300 shares of stock in the corporation and all three served as directors. The corporation also employed Gillam as general manager at an annual salary of approximately $12,000. In 1970 Crow was divorced from his wife, Patricia Coppock, the appellee (now known as Patricia Muir). As a substantial part of her divorce settlement, she received half of his Alaska Plastics shares, which he estimated to be worth about $20,000 then. In 1971 the corporation held a shareholders' meeting, but the shareholder-directors did not provide Muir with notice of that meeting. At that meeting the shareholder-directors decided that each director would receive an annual meeting fee of $3,000 plus travel and per diem expenses. Since Muir was the only non-director, she did not receive the $3,000 meeting fee. At that same meeting the salary of the corporation's general manager was informally increased to $30,000 per year. Additionally, the shareholder-directors decided to buy an airplane for the general manager's use. In 1972 Alaska Plastics held a shareholders' meeting, in Seattle, and again did not notify Muir. In 1973 the corporation held another shareholders' meeting and did not give Muir notice until three hours before the meeting. In 1974 the shareholder-directors again failed to notify Muir of the shareholders' meeting. During the 1974 meeting the shareholder-directors decided to acquire another business (Valley Plastics, Inc.) as a wholly owned subsidiary in which they would be the sole directors and officers. In mid-1974 Muir consulted an attorney, who subsequently wrote to the directors asking to inspect the corporate records on Muir's behalf. The directors did not re spond, nor did they respond to her attorney's second letter demanding inspection. Soon after the directors had received Muir's requests for inspection they decided to offer her $15,000 to buy out her Vs interest (150 shares) in Alaska Plastics. This buy-out amount was apparently derived from the corporation's net worth during the previous and less lucrative year. The controlling shareholder-directors now acknowledge that they made an error in calculation; even a calculation based on the lower "book value" of Muir's shares at that time would have yielded the figure of $130 per share, rather than the $100 per share offered by the corporation. In 1975 Alaska Plastics offered Muir $20,000 for her shares. She rejected that offer. Her accountant then examined Alaska Plastics' financial records, and estimated that her stock was worth between $23,000 and $40,000 in 1974. Muir notified the corporation's directors that she wanted $40,000 for her interest in Alaska Plastics. The directors refused, informing Muir that she could buy them out for a total price of $200,000. Muir filed suit against Alaska Plastics and its shareholder-directors. Ultimately, the court entered judgment in Muir's favor, following an advisory jury decision that $32,000 would be a fair price for Alaska Plastics to buy out Muir's shares. The defendants appealed that judgment to this court, leading to our decision in Alaska Plastics, Inc. v. Coppock, 621 P.2d 270 (Alaska 1980). We remanded the case because the superior court had not made the necessary findings and conclusions. In 1984 the superior court issued its findings and conclusions, and entered a $32,000 judgment for Muir as the fair and reasonable value of her share of the corporation. The controlling shareholder-directors appealed. II. DISCUSSION The controlling shareholder-directors argue that the record does not support the superior court's findings of oppressive or fraudulent conduct sufficient to warrant a remedy as "drastic" as involuntary dissolution of the corporation or a forced buy-out of Muir's shares. We disagree. The appellants actually concede more than enough evidence to support the conclusion that they were unfair in their dealings with the unwelcome newcomer in their corporation. They also argue that, even if the record does support the superior court's findings, the judgment is nevertheless erroneous because, in their view, our Alaska Plastics opinion precludes the superior court from ordering the controlling shareholders to buy out Muir's shares at an equitable price. Again we disagree. In Alaska Plastics we stated that in order for the minority shareholder to warrant a forced buy-out of her shares, she must establish on remand that the actions of the controlling shareholders "were 'illegal, oppressive or fraudulent,' AS 10.05.-540(2), or alternatively, constituted a waste or misapplication of corporate assets." Alaska Plastics, 621 P.2d at 275. Because the trial court had not yet reached this issue, we expressed no opinion at that time as to whether Muir had satisfied the standards of AS 10.05.540. On remand, however, the superior court did find that the appellants' conduct was oppressive and that the requisites of AS 10.05.540(2) were met. It is clear that AS 10.05.540(2) allows the superior court to liquidate a corporation when it is shown that the acts of those in control are oppressive or fraudulent. However, courts retain equitable authority to fashion a less drastic remedy to fit the parties' situation. Alaska Plastics v. Coppock, 621 P.2d at 275; Baker v. Commercial Body Builders, Inc., 264 Or. 614, 507 P.2d 387, 395-96 (1973). The controlling shareholder-directors now claim that the buy-out remedy is not "less drastic" than liquidation and that the court is limited by statute to liquidation as a remedy. Again, AS 10.05.540(2) is a remedial statute that does not preclude all other equitable remedies. Moreover, we are not persuaded that ordering a buy-out of an oppressed minority shareholder's interest is more drastic than ordering the death of the corporation. From the controlling shareholders' point of view, the buy-out may be more costly, but such a remedy provides an effective means of fairly compensating the aggrieved shareholder here. The buy-out remedy fits the situation in this case. The appellants also argue that the superior court erred in awarding $23,431 in prejudgment interest dating back to 1974, when Muir's cause of action apparently arose. We disagree. Prejudgment interest may accrue' from the date of injury. Farnsworth v. Steiner, 638 P.2d 181 (Alaska 1981); State v. Phillips, 470 P.2d 266 (Alaska 1970). Since much of the controlling shareholders' unfair conduct toward Muir began before 1974, the superior court could reasonably select that year for the accrual of prejudgment interest in this case. We find no merit in the controlling shareholders' argument that the prejudgment interest award is inappropriate because they did not have "the use" of Muir's stock during the period dating back to 1974. It was their unfair conduct that denied Muir the full benefit of her stock. Finally, the controlling shareholders correctly point out that the superior court erred in awarding Muir $20,000 in attorney's fees without explaining its deviation from the schedule of fees set forth in Rule 82. Therefore, the judgment of the superior court is AFFIRMED except as to the award of attorney's fees. This case is REMANDED to the superior court on this one issue; the superior court shall either explain the deviation from the Civil Rule 82 schedule of fees or enter a new award in keeping with that schedule. . This salary increase was formally ratified by the directors three years later. . The appellants also argue that corporate liquidation was the only remedy available to the superior court, pursuant to AS 10.05.540, which provides that: In an action by a shareholder, the superior court may liquidate the assets and business of a corporation when it is established (2) that the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent; This is a remedial statute, and it merely states that a superior court "may" order the liquidation of a corporation in the types of situations listed. This statute does not deprive the superi- or court of its equitable authority to fashion appropriate remedies. See Alaska Plastics, 621 P.2d at 274. . Oppressive conduct within the corporate context can be complicated and sometimes difficult to discern. We favor the view recently expressed by the New York Court of Appeals in coping with the difficulty of defining such oppression. The question has been resolved by considering oppressive actions to refer to conduct that substantially defeats the "reasonable expectations" held by minority shareholders in committing their capital to the particular enterprise- A shareholder who reasonably expected that ownership in the corporation would entitle him or her to a job, a share of corporate earnings, a place in corporate management or some other form of security would be oppressed in a very real sense when others in the corporation seek to defeat those expectations and there exists no effective means of salvaging the investment. In the Matter of the Judicial Dissolution of Kemp & Beatley, Inc., 64 N.Y.2d 63, 484 N.Y.S.2d 799, 805, 473 N.E.2d 1173, 1179 (1984) (citations omitted). See also Graham v. Mimms, 111 Ill. App.3d 751, 67 Ill.Dec. 313, 328, 444 N.E.2d 549, 564 (1982).

10418975

Sylvia MEYERES, Appellant, v. George F. (Bud) MEYERES, Appellee

Meyeres v. Meyeres

1985-09-06

No. S-347

921

923

705 P.2d 921

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Sylvia MEYERES, Appellant, v. George F. (Bud) MEYERES, Appellee.

Sylvia MEYERES, Appellant, v. George F. (Bud) MEYERES, Appellee. No. S-347. Supreme Court of Alaska. Sept. 6, 1985. Fleur Roberts, Law Offices of Dick L. Madson, Fairbanks, for appellant. Ronald E. Noel, Gail M. Ballou, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1662

10308

OPINION MOORE, Justice. This is an appeal from an order denying Sylvia Meyeres' request to modify the marital property distribution that accompanied her decree of divorce from George "Bud" Meyeres. In the divorce decree the superi- or court awarded each party a 50% interest in certain assets, including two parcels of real property and stock in three closely held corporations. However, the court also provided that Bud could buy Sylvia's interest in the realty at one-half of the parcels' appraised value and her interest in the three corporations at one-half of their book value. Additionally, the court allowed Bud to arrange for the properties' appraisal. Sylvia did not appeal the superior court's divorce decree. Instead, she waited until Bud exercised his court-ordered options. Sylvia then filed a "Motion to Enforce Decree," in which she contended that the five disputed assets were greatly undervalued and that the court should have granted her counter-options to purchase Bud's interests if his proposed buy-out offer proved to be unacceptably low. Accordingly, she asked the court to deny Bud's motion to enforce distribution. The superior court declined to do so. Sylvia appealed. I. FACTS AND PROCEEDINGS In May 1981 George "Bud" Meyeres sued for divorce from his wife, Sylvia Mey-eres. The parties received a divorce decree in December 1982. The superior court's findings of fact and conclusions of law identified certain properties as marital assets subject to equitable division, including real estate and corporate stock. During the divorce proceeding, neither Bud nor Sylvia introduced expert testimony about the value of their interests in certain closely held corporations or the value of their real estate. The court apparently relied on Bud's testimony to determine the estimated value of the parties' marital assets. On January 7, 1983, Sylvia's trial attorney filed a Rule 59(f) motion to amend the divorce decree's findings and conclusions. Specifically, Sylvia's counsel objected to the following: (1) that Sylvia would have to wait up to 90 days to receive the $50,000 awarded to her in lieu of alimony, (2) that "no mention was made of costs or attorney's fees," (3) that the court had failed to award her "one-half of the mortgages receivable and partnership interests," and (4) that the court had failed to give Sylvia the same buy-out options granted to Bud, even though granting options to both parties would avoid "the problem of an appraisal price which is below market price." On February 8 the superior court heard oral argument on the motion to amend. During that hearing the superior court judge orally denied the motion to amend. Sylvia's trial counsel did not appeal this ruling. In March 1983 Bud sent Sylvia a letter, along with a check for $89,977.49, to exercise his buy-out options granted in the divorce decree. However, the amount tendered by Bud in exercising his buy-out options was based on valuations of various properties that yielded amounts much lower than those discussed at trial or in the superior court's findings and conclusions in the divorce decree. On May 5, 1983, Bud filed a motion to enforce the divorce decree. Sylvia filed a "motion to enforce divorce decree" on May 20, which the superior court treated as an opposition and cross-motion. Her motion asked the superior court to redress the apparent inequity inherent in Bud's proposed buy-out by giving Sylvia "the right to buy out Mr. Meyeres' one-half interest in the property for the same sum he proposes to purchase Mrs. Meyeres' one-half share." Sylvia stressed that the court had ordered the real property and corporate stock acquired during the marriage to be divided equally. Based on Bud's own testimony, the court had decided that the marital property was worth $540,000. However, "Mr. Meyeres now offers, in the March 28 letter, to pay the defendant less than $41,000 total for her one-half interest in what the court was led to believe [during trial] was over a half a million dollars in property." On June 16, 1983, the superior court held a hearing on the parties' respective motions. During that hearing Sylvia's counsel emphasized the obvious discrepancy between the valuation amounts used by Bud in his buy-out proposal and those listed in Paragraphs 7 and 8 of the superior court's divorce decree. In particular, Sylvia assailed Bud's use of book value in setting the amounts at which he would buy out her interest in the close corporations. She also objected to Bud's use of an appraiser with whom he had a longstanding social and business relationship, and she disputed the new valuations placed on certain parcels of real estate, valuations much lower than those estimated by the court in its findings and conclusions. On July 22, 1983, the superior court ruled in favor of Bud's "motion to enforce" the terms of his proposed buy-out of Sylvia's interest in the real estate and close corporations at issue. Sylvia then appealed. II. DISCUSSION This case is not an appeal from the superior court's divorce decree itself. Notwithstanding problems inherent in that decree's findings and conclusions, Sylvia did not appeal the terms of the court's property distribution. We decline to review what Syl via's trial counsel failed to appeal. Therefore only one issue is properly before us now: whether the superior court abused its discretion by enforcing Bud's exercise of his buy-out options after the court determined that the amounts Bud tendered to Sylvia fulfilled the requirements of the divorce decree's property distribution order. During the June 1983 hearing on the parties' respective motions to enforce the divorce decree's property distribution, the central issue before -the superior court was whether Bud had fulfilled the requirements set forth in that decree's findings and conclusions. In Sylvia's motion to enforce, her key objections pertained to (1) the apparent inequity resulting from Bud's use of simple "book value" in buying out her interests in their closely held corporations, and (2) Bud's use of an appraiser not acceptable to Sylvia to ascertain the amounts at which he would buy out her one-half interest in their real estate. However, Sylvia's arguments in her motion to enforce are objections to the terms of the divorce decree itself, which her trial attorney failed to appeal in accordance with Appellate Rule 204. Thus the only issue properly before us is whether the superior court abused its discretion in deciding that Bud had satisfied the divorce decree's property distribution requirements. Paragraph 3 of the divorce decree granted each of the parties a 50% interest in the "Chena. Lakes" property and "Lipscomb Subdivision" lot, and granted Bud the option to buy Sylvia's interest; if he declined to do so within 90 days, then the properties would be sold and the proceeds distributed equally. In paragraphs 1 and 9 of its subsequent enforcement order, the court found that Bud's creation of a joint tenancy in these properties fulfilled the divorce decree's requirement. Paragraph 7 of the divorce decree granted Bud an option to buy out Sylvia's one-half interest in both the "Nome mining claim" property and the Sisters of Providence acreage and allowed Bud to determine the purchase price by a subsequent appraisal. Paragraphs 10 and 11 of the subsequent enforcement order accepted Bud's payments of $6,200 and $16,000 for Sylvia's interests in the respective properties, thereby fulfilling the requirements of the divorce decree. Finally, paragraph 8 of the divorce decree granted Bud an option to buy out Sylvia's interest in their closely held corporations, and provided that such a buy-out "shall be in an amount equal to the book value of the shares." In its subsequent enforcement decision the superior court declined to revise its earlier decision to allow book value to be the basis for Bud's buyouts of Sylvia's interests in the corporations. Thus the court ruled that Bud had satisfied the divorce decree by his payment to Sylvia of the following amounts: zero for her interest in the Mud Creek Mining Corporation; $3,032 for her interest in All Arctic Fuel and Maintenance, Inc.; and $5,064.24 for her interest in Action Auto Parts & Salvage, Inc. Given the broad latitude granted to trial courts in determining property divisions, we refuse to find that the superior court abused its discretion in granting Bud's motion to enforce, even though we might have taken a different approach. Cf. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981) (supreme court will not disturb trial court's decision on marital property division unless its decision is clearly unjust). The superior court's order granting Bud's motion to enforce is therefore AFFIRMED. . Sylvia's motion was labelled a "Motion to Enforce Decree" but it was also in the nature of a Rule 60(b) motion since it assailed certain terms of the divorce decree relating to the valuation of assets and the granting of buy-out options to Bud only. . Approximately two-thirds of that check covered undisputed amounts owed to Sylvia, such as the $50,000 awarded to her in lieu of alimony in accordance with the parties' antenuptial agreement, $8,500 for liquidated assets, and also attorney's fees previously ordered by the superior court. . At this stage of the proceedings Sylvia was represented by different counsel. . Simplistic reliance on only the "book value" method of valuing closely held corporations has been criticized by commentators and some courts. E.g., L. Golden, Equitable Distribution of Property § 7.07-.09 (1983); Bowen v. Bowen, 96 N.J. 36, 473 A.2d 73, 76-78 (1984); Reid v. Reid, 280 S.C. 367, 312 S.E.2d 724, 727 (S.C.App. 1984). See also Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985); Internal Revenue Service Rev. Rui. 59-60, 1959-1 C.B. 237, § 4.01 (guidelines for valuing closely held corporations in cases of marital property distribution) (quoted in Hunt, 698 P.2d at 1171 n. 2).

10425402

Robert A. BRANDENBURG, Appellant, v. STATE of Alaska, Appellee

Brandenburg v. State

1985-09-13

No. A-620

1331

1334

705 P.2d 1331

705

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Robert A. BRANDENBURG, Appellant, v. STATE of Alaska, Appellee.

Robert A. BRANDENBURG, Appellant, v. STATE of Alaska, Appellee. No. A-620. Court of Appeals of Alaska. Sept. 13, 1985. Richard L. McVeigh, McVeigh & Mela-ney, Anchorage, for appellant. Rhonda F. Butterfield, Asst. Dist. Atty., Victor C. Krumra, Dist. Atty., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1308

8262

OPINION BRYNER, Chief Judge. Robert A. Brandenburg pled nolo con-tendere to one count of misconduct involving a controlled substance (cocaine) in the third degree, in violation of AS. 11.71.-030(a)(1). Superior Court Judge J. Justin Ripley sentenced Brandenburg to eight years' imprisonment, with three years suspended. Brandenburg appeals, contending that his sentence is excessive. We affirm. THE OFFENSE On August 22, 1983, Mark Flechsing, an undercover agent of the Metropolitan Drug Unit accompanied Alexander Resek, Sr., to the Anchorage residence of Robert Brandenburg. Resek told Flechsing that Brandenburg was his best customer, buying a pound of uncut cocaine from him every week to ten days. Resek said that he had to "talk some business with Brandy." At Brandenburg's house, Flechsing heard Re-sek and Brandenburg agree that they would "take care of all our business" before Brandenburg left town at the end of the week. As Resek and Flechsing left the house, Resek stated that nobody else in town gets the quality of cocaine that Brandenburg does. That same day at Resek's apartment, Resek and Flechsing weighed out a one-pound bag and a five-ounce bag of cocaine, and returned to Brandenburg's house. While Flechsing remained in the car, Resek met Brandenburg on the porch. Brandenburg directed F.R., a seventeen-year-old juvenile, to get the cocaine from the car. Brandenburg went inside the house with Resek. F.R. picked up the cocaine and took it to someone inside the house. When Resek returned to the car, he brought back the five-ounce bag of cocaine but not the one-pound bag. On September 10, 1983, the police served a search warrant on Brandenburg's residence. They found one-half ounce of cocaine, a bag of white powder marked "ground-cut," a set of scales, several address books and a ledger book. The ledger book had a page marked "Brandy To" and showed a transaction involving $32,000 on August 21. Resek had previously told Flechsing that the cost of a pound of cocaine was $33,500. The ledger also showed transactions involving similar amounts on June 15, July 1, and August 13. F.R. later told the police that she had lived with Brandenburg and his girlfriend since February 1983 as their babysitter and housekeeper. She said that Brandenburg sometimes used her to take messages and deliver cocaine to customers. F.R. also stated that Brandenburg took cocaine south to Seattle and/or California. F.R. herself took approximately two ounces, concealed in her boots, to Brandenburg's son in Washington. According to F.R., on three occasions when Brandenburg left the state, he asked her to take over the business. On both the first and second occasions, F.R. sold approximately one-half pound of cocaine, all that Brandenburg had left with her. On the third occasion, Brandenburg left F.R. with one and one-half pounds of cocaine; she sold one-half pound and the other pound was stolen. F.R. further indicated that Brandenburg did not deal cocaine in gram amounts; rather, he sold in one ounce, half ounce, quarter-ounce and eighth-ounce quantities. THE OFFENDER Brandenburg, forty-six years old at the time of sentencing, had one prior misdemeanor conviction for shoplifting in 1980. Brandenburg has not worked a regular job since coming to Alaska in 1981, but he does apparently own a tavern in Twisp, Washington. Brandenburg stated that some of his income is from the tavern's operation but most derives from card-playing. He stated that since the death of.his second wife in 1984, he has been depressed and has had to seek medical attention. Brandenburg has four adult children. He was recently remarried. DISCUSSION Brandenburg argues that the sentence he received, eight years with three years suspended, is excessive compared to sentences approved for similar drug offenses involving first offenders. However, the cases relied on by Brandenburg are distinguishable, since they involved either substantially smaller quantities of cocaine or isolated incidents of misconduct. See, e.g., Kelly v. State, 622 P.2d 432, 439-40 (Alaska 1981); Leduff v. State, 618 P.2d 557, 558 (Alaska 1980); and Rosa v. State, 633 P.2d 1027, 1031-33 (Alaska App.1981). Moreover, these cases involved sentences imposed under prior law. Under current law, misconduct involving a controlled substance in the third degree is a class B felony, punishable by a maximum sentence of ten years' imprisonment. AS 11.71.-030(c); AS 12.55.125(d). Presumptive terms of four and six years are prescribed for second- and third-felony offenders. AS 12.55.125(d)(1), (2). As a first-felony offender, Brandenburg was not subject to a presumptive term. In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we held that, "[normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." More recently, however, in Lausterer v. State, 693 P.2d 887, 892 (Alaska App.1985), we indicated that although the amount of drugs involved in an offense is only one of several factors relevant to sentencing in a drug case . the amount of cocaine involved here [more than half a pound] renders this case sufficiently aggravated to permit, without violating the principles of Austin, the imposition of an unsuspended term of four years, an amount equal to the second offense presumptive sentence for a class B felony. [Footnote omitted.] See also Stuart v. State, 698 P.2d 1218 (Alaska App.1985); Marin v. State, 699 P.2d 886 (Alaska App.1985). In Lausterer, Stuart and Marin we approved imposition of additional two-year suspended terms, for total sentences of six years with two years suspended. See also Resek v. State, 705 P.2d 463 (Alaska App.1985). Brandenburg's offense is similar in nature to the offenses involved in Lausterer and Stuart, except for two significant differences. First, Brandenburg appears to have been involved in selling larger amounts of cocaine over a longer period of time than either Lausterer or Stuart. Second, and by far the most significant consideration, is that Brandenburg employed a seventeen-year-old girl as an active and integral part of his illicit drug dealings. The minor's participation was not an isolated incident, but rather continued over a protracted period of time and extended to virtually all aspects of Brandenburg's operation. Cf AS 11.71.010(a)(2) and AS 12.-55.125(b) (classifying delivery of cocaine to a person under nineteen years of age, who is at least three years younger than the person delivering the substance, as an unclassified felony punishable by a definite term of imprisonment of at least five years but no more than 99 years). These factors, we believe, render this case a particularly egregious first offense and serve to justify a sentence exceeding the total of six years with two years suspended that we approved in Lausterer and Stuart. Having reviewed the entirety of this sentencing record, we conclude that Brandenburg's sentence of eight years with three years suspended is not clearly mistaken. The sentence is AFFIRMED. . See AS 12.55.155(c)(25) (providing that a statutory presumptive sentence may be adjusted upward when "the defendant is convicted of an offense specified in AS 11.71 and the offense involved large quantities of a controlled substance"). . While it may be argued that Brandenburg trafficked in significantly smaller quantities of cocaine than were involved in Marin, it is clear that, unlike the situation in Marin, Brandenburg was not merely a drug courier; rather, he was intimately involved as the principal participant in an ongoing course of illegal drug sales. . We find no merit to Brandenburg's separate argument that Judge Ripley failed to give adequate consideration to all applicable sentencing goals. See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

10412344

Donald STEPHAN, Petitioner, v. STATE of Alaska, Respondent; Malcolm Scott HARRIS, Petitioner and Cross-Respondent, v. STATE of Alaska, Respondent and Cross-Petitioner

Stephan v. State

1985-02-04

Nos. S-387, S-406

410

410

705 P.2d 410

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Donald STEPHAN, Petitioner, v. STATE of Alaska, Respondent. Malcolm Scott HARRIS, Petitioner and Cross-Respondent, v. STATE of Alaska, Respondent and Cross-Petitioner.

Donald STEPHAN, Petitioner, v. STATE of Alaska, Respondent. Malcolm Scott HARRIS, Petitioner and Cross-Respondent, v. STATE of Alaska, Respondent and Cross-Petitioner. Nos. S-387, S-406. Supreme Court of Alaska. Feb. 4, 1985. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

88

602

ORDER The Court of Appeals' decisions in Harris, 678 P.2d 397 (1984), and Stephan are REVERSED. The cases are REMANDED for further proceedings, with orders that Harris' and Stephan's statements made during their interrogations be suppressed. An opinion will follow. IT IS SO ORDERED. COMPTON, J., not participating.

10453134

Hortensia C. DRICKERSEN, Petitioner, v. Charles G. DRICKERSEN, as the natural father, guardian, and next friend of Pandora M. Drickersen, et al., Respondents

Drickersen v. Drickersen

1976-01-08

No. 2634

162

172

546 P.2d 162

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

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

Hortensia C. DRICKERSEN, Petitioner, v. Charles G. DRICKERSEN, as the natural father, guardian, and next friend of Pandora M. Drickersen, et al., Respondents.

Hortensia C. DRICKERSEN, Petitioner, v. Charles G. DRICKERSEN, as the natural father, guardian, and next friend of Pandora M. Drickersen, et al., Respondents. No. 2634. Supreme Court of Alaska. Jan. 8, 1976. Murphy L. Clark and Peter A. Galbraith, Anchorage, for petitioner. James A. Parrish, Fairbanks, for respondents. Before RABINOWITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER and BURKE, JJ.

5725

35071

OPINION RABINOWITZ, Chief Justice. This petition raises first impression questions relating to Alaska Rule of Civil Procedure 14(a), concerning third-party-practice, and the doctrine of res judicata. On August 28, 1971, petitioner was involved in an automobile accident which occurred near Mile 268 on the Richardson Highway. Petitioner was the driver of an automobile in which respondent Mr. Drick-ersen and the Drickersen children were passengers. As petitioner was attempting to pass an Army convoy, the lead convoy vehicle turned left and the two vehicles collided. On May 23, 1972, respondent Charles Drickersen, individually and as guardian on behalf of the minor children, filed the instant case in the Superior Court of the State of Alaska, Fourth Judicial District, claiming that petitioner was negligent and that her negligence was a proximate cause of the accident and resultant injuries to plaintiffs, Subsequently, on February 8, 1973, respondents filed an action in the United States District Court for the District of Alaska against the United States under the Federal Tort Claims Act, alleging that the negligence of agents of the United States was a proximate cause of the accident and resultant injuries to the plaintiffs. In this latter case the United States filed a third-party complaint against Mrs. Drickersen seeking recovery for "all sums that may be adjudged against defendant United States was a proximate cause of plaintiffs" and alleging that Mrs. Dricker-sen's negligence caused the accident. In this federal litigation, respondent Mr. Drickersen did not attempt to assert any claim against petitioner Mrs. Drickersen. Respondents' district court claim against the United States was tried to a judge at the same time the third-party claim of the United States was tried to a jury. The jury found that Mrs. Drickersen was negligent but that her negligence was not a proximate cause of the accident. The federal judge found that the United States was not liable to respondents. Respondents have appealed this trial judge's decision to the Ninth Circuit Court of Appeals. No appeal was taken by the United States from the jury's verdict. Based on the outcome of the trial in federal court, petitioner Mrs. Drickersen moved in the superior court for summary judgment pursuant to Rule 56(b), Rules of Civil Procedure. Petitioner grounded her motion for summary judgment on the premise that res judicata and collateral es-toppel precluded maintenance of the superior court litigation. In its order denying petitioner's motion for summary judgment, the superior court reasoned in part: The plaintiff [sic] at no time sought to present in Federal Court their claims against defendant third-party plaintiff in that Court. It may very well be that the plaintiffs here could have done so, but the fact is they did not. I find no authority requiring citizens of this state to litigate their differences in Federal Court. This is an election that is available to the citizens of this state if pendent jurisdiction exists and proper application is made in Federal Court. The Federal Court can under certain circumstances assume original and pendent jurisdiction. If it does not, then the parties are not precluded by the fact that they have failed to seek pendent jurisdiction in Federal Court from pursuing their State remedies. For reasons which will be detailed, we affirm the judgment of the superior court. In her petition to this court, Mrs. Drick-ersen advances primarily two arguments in support of her position that the superior court's denial of summary judgment should be reversed. First, she contends that res judicata bars the state court suit against her "because respondent had the opportunity to litigate petitioner's liability to him in federal court." Petitioner further argues that since " [respondent was a party or was in privity with a party to the federal court action . . . " application of the principles of collateral estoppel bars the superior court action. We will first examine petitioner's assertion that a genuine opportunity to litigate the claim presented in this case below was available to respondent in the federal forum. Federal jurisdiction being interstitial in nature, 'it is clear that no independent ground of federal jurisdiction would exist in any action between Mr. Dricker-sen, the children, and Mrs. Drickersen based on the latter's negligence. Petitioner's theory must be that ancillary jurisdiction would exist in the event respondents filed a claim pursuant to Federal Rule of Civil Procedure 14. Respondents, on the other hand, assert that such jurisdiction would be contrary to the clear weight of authority in the federal courts and argue that, even if this court should determine that jurisdiction over the claim would be accepted, respondents ought not be penalized for their reliance on the weight of federal authority. The present conflict in federal authority arises as a result of the landmark case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). As the author states in Note, 81 Harvard Law Review 657, 672 (1968): The implications of Gibbs may be felt in other situations. Its recognition of economy and convenience as important jurisdictional factors may ultimately result in the development of an estoppel rule against plaintiffs who fail to assert all their non federal claims which could be heard under pendent jurisdiction. Petitioner argues that when the United States is a party in a Federal Tort Claims Act suit, the rationale, which generally prohibits the federal courts from allowing Rule 13 cross-claims grounded in state law (or Rule 14(a) claims for that matter), does not hold. The reason for generally disallowing such claims was that diversity of citizenship jurisdiction is destroyed when citizens of the same state assert claims against each other. But here the United States is sued in the federal forum because, under 28 U.S.C. § 1346, it must be, and it in turn sues in the federal court not under diversity jurisdiction but rather because it must do so pursuant to 28 U.S.C. § 1345. Thus, there is no question of defendant and plaintiff collusively choosing a federal forum where defendant may im-plead a third-party defendant whom plaintiff then directly sues. Petitioner then cites this court to Davis v. United States, 350 F.Supp. 206, 207-08 (E.D.Mich.1972), where the court said: In United Mines Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the court stated that as between a single plaintiff and a single defendant in the interest of judicial economy a Federal Court may exercise jurisdiction over claims that ordinarily could not be brought in a Federal Court when the Federal and State claims are so interrelated as to be capable of being treated as one case. There must be a common nucleus of operative fact and there must be a substantial Federal claim. Here the suits are completely intertwined . Moreover, the Federal claim here is indeed substantial; this court has jurisdiction over the parties here by virtue of the Federal Tort Claims Act, under which the Federal Courts are the only courts that have the jurisdiction to hear cases sounding in tort against the Federal Government. The third party defendants are properly in the case because of the government's claim of liability over. As long as there is only one wrong and one recovery, as here, and, as here, all parties are properly before the court, whether as plaintiff, defendant or third party defendant, it matters not how many defendants there are, nor does it matter that one of the claims between two of the parties is not supported by independent jurisdictional grounds. Accord, Jacobs v. United States, 367 F. Supp. 1275 (D.Ariz.1973). As petitioner points out, most of respondents' cases involving cross-claims against third parties are pr^-United Mine Workers v. Gibbs and are thus questionable authority. Respondents do cite several post-Gibbs cases but these cases contain significantly different fact situations. Mickelic v. United States Postal Service, 367 F.Supp. 1036 (W.D. Pa.1973), goes so far as to state that Davis has been disregarded as authority. The Mickelic court concluded that Davis and its progeny are unwarranted extensions of Gibbs. In short, we think it unclear whether the United States District Court would have exercised its discretion so as to accept jurisdiction over a suit brought, pursuant to Rule 14, by respondents against petitioner. In order to reach the important res judica-ta and collateral estoppel issues raised by this complaint, we shall assume arguendo that the United States District Court would have accepted jurisdiction. Given this assumption, we must answer the question whether respondents' superior court action is then barred by application of res judicata principles. The gist of petitioner's argument here is that Mr. Drick-ersen had an opportunity to litigate the issue of Mrs. Drickersen's liability to him and the children in the federal court action. Not having availed himself of this opportunity in the federal forum, he is barred from asserting it now. Thus, we must decide whether the permissive phraseology of Rule 14 of Alaska's Rules of Civil Procedure renders the application of the doctrine of res judicata inappropriate. We look to the appropriate Alaska Rule of Civil Procedure because the bar of res judicata has been raised in the superior court action and the question thus becomes one of whether it is the policy of the courts of Alaska to bar claims which might have been asserted in prior actions. Resolution of this policy question in turn requires examination of the purposes of Rule 14(a) and the doctrine of res judicata, as well as relevant decisional law and commentary. It has been stated that the general purpose of Rule 14 is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant. Professor Moore makes the further point that the impleader provided for in Rule 14 is permissive .and not compulsory. As Rule 14(a) is presently structured, a third party may now be brought in under Rule 14(a) only on an allegation of liability over to the defendant. Once the third party has been impleaded, the original plaintiff may ". . . assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff . . ." In regard to the original plaintiff's claims against the third-party defendant, Professor Moore holds the view that, "The plaintiff is not required to assert such a claim, and is not barred from bringing a subsequent action against the third party by his failure to do so." Thus, Professor Moore further concludes that, "An original party may, but is not obliged to implead a third party, and his failure to do so, or the court's refusal to permit him to do so, affects none of his substantive rights. Professors Wright and Miller reach a similar conclusion. They assert that, "The original plaintiff need take no action with regard to any third party claim that has been added to the action." The claims of plaintiff against defendant, and of third-party plaintiff against third-party defendant especially in light of the 1946 amendment to Federal Rule of Civil Procedure 14 (cf. footnote 5, supra) will often involve diametrically opposed views of the facts. The things decided in such a situation are decided in light of the complex of parties and claims including the absence of direct allegations of liability between plaintiff and third-party defendant. As a matter of common sense, it hardly seems fair to hold a party in the earlier litigation to a position in the later litigation which is irrelevant to his concerns in the former case; the original plaintiff ought not be forced to simultaneously attack the defendant and defend him. Thus Professors Wright and Miller assert: The question of adversity . is important because of its relationship to the doctrine of former adjudication. If the parties are not adverse, then the determination of issues between the original parties or the parties to the third-party claim, regardless of how identical they might be with issues that are part of the unasserted claims existing between plaintiff and the third-party defendant, may not be given collateral es-toppel effect in a later action between plaintiff and the third-party defendant. Professors Wright and Miller's view regarding adversity and its impact on applicability of res judicata necessitates an examination of the res judicata rule. Res judicata is a doctrine judicial in origin which has as its primary objective claim preclusion or judicial finality. The term is used to denote two things in respect to the effect of a valid, final judgment: (1) that such a judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim or demand; and, (2) that such a judgment constitutes an estoppel, between the same parties or those in privity with them, as to matters that were necessarily litigated and determined although the claim or demand in the subsequent action is different. The Supreme Court of the United States has opined that the doctrine of res judicata is not a technical rule, but a rule of fundamental repose for both society and litigants. Its salutary principle " . . .is founded upon the generally recognized public policy that there must be some end to litigation and that when one appears in court to present his case, is fully heard, and the contested issue is decided against him, he may not later renew the litigation in another court." In State v. Baker, 393 P.2d 893, 896 (Alaska 1964) (footnote omitted), we stated, "[Res judicata] bars a second suit between the same parties on the same subject matter resolving the same issues between the parties in the same capacity or quality." In Baker, we also remarked that while res judicata is applicable only to suits involving identical causes of action, when a second action is upon a different cause, collateral estoppel will preclude from litigation any issues actually adjudicated in the previous action involving the same parties or their privies. In discussing the meaning of "privity" in Pennington v. Snow, 471 P.2d 370, 374-75 (Alaska 1970) (footnotes omitted), we said: The usual statement of the identity of parties requirement is that a judgment has conclusive force only between persons who are parties to the action or in privity with them. Broken down, this requirement may be seen to encompass two separate rules. There is, first, inherent in the identity of parties requirement the rule of privity, which states that the only persons bound by a judgment are those who are parties to the action or in privity with the parties. Recognizing that the boundaries of privity have never been clearly defined, we concluded in Pennington that the existence of privity must depend upon a finding that the first action provided substantial protection of the rights and interests of the non-party. In each case, then, the determination of whether privity exists must be made by an analysis of the relationship of the rights and interests of the parties to be held in privity. . . . [Bjefore privity may be found to exist, the non-party must have notice and an opportunity to be heard; the procedure must insure the protection of the rights and interests of the non-party, and he must in fact be adequately represented by the parties. The extent to which the interests of the non-party are identical to those of the parties of the action provides a gauge for the determination of the adequacy of representation. In Professor Moore's view, the requirement of identity of parties is justified by the ancient doctrine that a person cannot be bound by a judgment unless he has had reasonable notice of the claim against him and an opportunity to be heard in opposition to that claim. With the foregoing discussion in mind, we return to the question of whether it is the policy of the courts of Alaska to bar claims which a party might have asserted, pursuant to Rule 14, Alaska Rules of Civil Procedure, in a prior action. In light of the permissive, non-mandatory language of Rule 14(a), we are of the opinion that in the circumstances of this case, invocation of res judicata to preclude the claim is inappropriate. In February of 1973, when respondents filed their tort claims action against the United States, there was nothing in the wording of Rule 14(a) giving notice that it was incumbent upon them to file a claim against petitioner once she had been impleaded as a third-party defendant by the United States Government. Thus, given the permissive wording of Rule 14(a), and the absence of any decisional law holding that a bar would arise if the original plaintiff failed to assert a claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, we find we are in agreement with the conclusions of Professors Moore, Wright, and Miller. More particularly, we hold that respondents were' not obligated to take any action in the federal court against the third-party defendant. Thus, respondents' substantive rights have not been lost, for we conclude respondents are not barred from maintaining their previously filed superior court action against petitioner. Our holding reflects our view that absent a clear imperative emanating from the text of Rule 14, it would be manifestly unjust to the respondents for our courts to apply res judicata and thus bar maintenance of the instant superior court action. Nor do we think there is merit to petitioner's argument that collateral estop-pel bars the superior court action. As mentioned previously, in Pennington v. Snow, 471 P.2d at 374 (footnote omitted), we stated that " . . . collateral estop-pel will act to preclude from litigation any issues actually adjudicated in the previous action involving the same parties or their privies." Respondents were not parties in the litigation that resulted in the jury's determination that, although Mrs. Drickersen was negligent, her negligence was not a proximate cause of the accident. Nor is the record capable of sustaining the conclusion that respondents were in privity with the United States. In Pennington, we held that a prerequisite to a finding of privity is that the non-party must have had notice and an opportunity to be heard. Respondents have persuasively argued that as to the third-party claim between the United States and petitioner, as third-party defendant, they did not in fact have the opportunity to be heard on the question of petitioner Mrs. Drickersen's tort liability to the United States. Although we hold in this case that the bars of res judicata and collateral estoppel are unavailable to petitioner, we think some additional observations are appropriate. Given the salutary goals of judicial economy and finality which form the foundational underpinning of the doctrine of res judicata, we think that ideally, in the factual context of the accident in this case, the goals of res judicata would have been best served by requiring respondents to assert their claims against petitioner third-party defendant. For here the conduct between the same parties was in issue. If Mrs. Dickerson was negligent in her conduct prior to her vehicle's impact with the lead vehicle of the military convoy, she, in all probability, would be held liable to respondents for their injuries. These latter remarks are made in recognition that it is a somewhat unsatisfactory resolution of the primary issue in this case to hold that the answer turns on the permissive language of Rule 14(a), rather than giving primacy to the well-founded rationales underlying the doctrines of res judicata and collateral estoppel. Since we view the matter of considerable importance, we have determined to submit the question to our Standing Advisory Committee on Rules of Civil Procedure for the purpose of studying possible amendments to Rules 13 and 14 with a view toward facilitating furtherance of the goals of res judicata and collateral estoppel in factal circumstances approximating those presented in this record. Affirmed. . In Cramer v. Cramer, 379 P.2d 95 (Alaska 1963), we held that a woman was entitled to bring an action against her husband during coverture or thereafter for a tort to her person caused by his negligent conduct while the parties were married. In 1967, in Hebei v. Hebei, 435 P.2d 8 (Alaska 1967), this court ruled that a minor child had the right to bring a claim for relief against her parent for negligent infliction of harm. . Both parties take the view that resolution of this question is controlled by Rule 13(g), Federal Rules of Civil Procedure. They are mistaken. In the federal litigation, a claim by Mr. Drickersen, individually and on behalf of the children against the third-party defendant, cannot be classified as a cross-claim because in that suit the Drickersens are not co-parties. 3 J. Moore, Moore's Federal Practice ¶ 13.34 [1], at 13-871, 13-872, n. 4 (2d ed. 1974) [hereinafter cited as Moore's Federal Practice] ; e. g., Stahl v. Ohio River Co., 424 F.2d 52 (3d Cir. 1970). The relevant rule of procedure is Rule 14(a), Federal Rules of Civil Procedure, which provides in part that: "The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff . . . ." However, since the permissive "may" appears in both Rules 13(g) and 14(a), Federal Rules of Civil Procedure, the arguments presented by counsel still are of some relevance. . In 3 Moore's Federal Practice ¶ 14.27 [1], the author describes the situation at present as follows: The concept of ancillary jurisdiction was not regarded as extending so far as to permit a plaintiff, by this roundabout method [suing impleaded defendant], to recover a judgment against a citizen of the same state on a non-federal cause of action. The courts, with almost complete unanimity, have taken this view. While the earlier decisions held impleader to be ancillary where the question was merely one of bringing the third party into the case, they drew the line at that point and refused to permit plaintiff to amend his complaint to state a claim against a co-citizen. (Footnotes omitted, emphasis added) Professor Moore urges a re-examination of this position in light of Gibbs. See 3 Moore's Federal Practice ¶ 14.27 [1]. In Gibbs the Supreme Court overruled Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed.1148 (1933), and held that pendent jurisdiction, ". . .in the sense of judicial power, exists, whenever there is a claim 'arising under . . . the Haws of the United States . . .' . . . and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' " 86 S.Ct. at 1138, 16 L.Ed.2d at 227 (footnote omitted). The Court went on to assert that the power to exercise pendent jurisdiction is discretionary and justification for its assertion lies in considerations of judicial' economy, convenience, fairness to the litigants, and comity. . Professor Moore argues that the most obvious ease for taking jurisdiction of a claim by plaintiff against a third-party defendant under the trend initiated by Gibbs is where the original suit between plaintiff and defendant is based on the exclusive jurisdiction of the federal courts, as this one is. 3 Moore's Federal Practice ¶ 14.27 [1], at 14-572, 14-573. . See Fraser, Ancillary Jurisdiction and Joinder of Claims in Federal Courts, 33 F.R. D. 27, 41-43 (1964), arguing for ancillary jurisdiction of claims by plaintiff against a third-party defendant except where collusion actually exists. The article points out that the likelihood of such collusion is lessened since the 1946 amendment to Rule 14 which deleted those words in the rule which allowed joinder on the basis that the third-party defendant is liable to plaintiff. A third-party defendant may only be joined on the basis of liability to the third-party plaintiff. .In Davis, plaintiff, administratrix of a deceased airplane passenger's estate, sued the United States under the Federal Tort Claims Act for negligence in, inter alia, furnishing flight instructions. The United States filed a third-party action against both the pilot's estate and the owners of the airplane. Plaintiff attempted to name the third-party defendants as defendants even though diversity jurisdiction was lacking. The Davis court allowed plaintiff to sue the third-party defendant directly. . Respondents note that Dams and Jacobs both involved aircraft accidents where the cross-claims contained issues of federal law. . The uncertain state of federal law in this area furnishes an additional ground for our refusal to apply the bar of res judicata or collateral estoppel in the instant case. In this regard, we think Justice Brennan's opinion in England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 422-23, 84 S.Ct. 461, 468, 11 L.Ed.2d 440, 449 (1964), is of relevance. There the Supreme Court said: On the record in the instant case, the rule we announce today would call for af-firmance of the District Court's judgment. But we are unwilling to apply the rule against these appellants. As we have noted, their primary reason for litigating their federal claims in the state courts was as-sertedly a view that Windsor required them to do so. That view was mistaken, and will not avail other litigants who rely upon it after today's decision. But we cannot say, in the face of the support given the view by respectable authorities, including the court below, that appellants were unreasonable in holding it or acting upon it. We therefore hold that the District Court should not have dismissed their action. (Footnote omitted). .Alaska Rules 13(g) and 14(a), Rules of Civil Procedure, parallel their federal counterparts. Since Alaska Rules 13(g) and 14(a) are derived from and are substantially the same as their federal counterparts, we view federal decisional law construing the Federal Rules of Civil Procedure, and commentary regarding these rules, as relevant authorities for purposes of construing Alaska's Rules of Civil Procedure. . 3 Moore's Federal Practice ¶ 14.04, at 14-189 (footnotes omitted). . Id. ¶ 14.06, at 14-1201. In this respect Professor Moore notes that Rule 14 is analogous to Rule 13(g) which treats cross-claims against a co-party. . Id. ¶ 14.16[1], at 14-375 (emphasis in original; footnote omitted) ; Herrington v. Jones, 2 F.R.D. 108 (E.D.La.1945). . 3 Moore's Federal Practice ¶ 14.06, at 14-201. Expanding on this thesis, Professor Moore states (footnotes omitted) : Thus, it is no defense to an action for contribution that the plaintiff, when originally sued by the injured party in a federal court, failed to bring in the defendant as a third party. In passing on this question, the court held: 'It is clear that said Rule 14 confers upon a defendant the right to bring in additional defendants which he may exercise or ignore as he sees fit. It was not the intent of the . . . Rules to defeat substantive rights in a case where there has been an election not to utilize such right.' . O. Wright & A. Miller, Federal Practice and Procedure: Civil § 1459, at 311 (1971). Analogous reasoning is applied to the question of the applicability of res judicata and collateral estoppel under Rule 13(g), Federal Rules of Civil Procedure. Here Professors Wright and Miller state: Several important distinctions between cross-claims and counterclaims should be kept in mind other than the obvious difference in the alignment of the parties. Rule 13(g), unlike Rule 13(a), always is permissive. A party who decides not to bring his claim under Rule 13(g) will not be barred by res judicata, waiver, or estoppel from asserting it in a later action, as he would if the claim were a compulsory counterclaim under Rule 13(a). Id. § 1431 at 164 (footnotes omitted). Accord, (as to permissive nature of Rule 13(g)) C. Wright, Law of Federal Courts § 80, at 351-52 (2d ed. 1970) ; 3 Moore's Federal Practice ¶ 13.34 [1], at 13-871. Under this analysis, cross-claims are always permissive and a party is not compelled to assert a cross-claim on penalty of being prohibited from asserting the claim for relief in a subsequent suit. American Sur. Co. of N. Y. v. Frnel, 20 F.R.D. 110 (S.D.Iowa 1956) ; Burrell v. Southern, Pacific Co., 13 Ariz.App. 107, 474 P.2d 466, 469 (1970) ; St. Paul Fire and Marine Ins. Co. v. Thompson, 152 Mont. 396, 451 P.2d 98, 101 (1969). . C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1459, at 315 (1971) (footnote omitted). The American Law Institute, Restatement of the Law of Judgments (1942) [hereinafter cited as Restatement of Judgments], is in accord. Section 82 provides : The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings as to their rights inter se upon matters which they did not litigate, or have an opportunity to litigate, between themselves. The Restatement comments state that, "The rules of res judicata are based upon an adversary system of procedure. Because of this, the claims of persons who are not parties to the action are not . affected either by the judgment or by the litigation of any issue upon which the judgment depends." Cf. Restatement of Judgments § 82, Illustration 1. Compare Restatement of Judgments § 68. Plaintiff and third-party defendant are not adversaries under the pleadings. Cf. footnote 2, supra. . IB Moore's Federal Practice ¶ 0.405, at 621 (footnote omitted). As to the first connotation, Professor Moore notes that the judgment constitutes a bar preventing reliti-gation of 11 grounds for, or defenses to, recovery that were available to the parties regardless of whether they were judicially determined. Gf. Restatement of Judgments, § 47, 48, 62. Under the second connotation of res judicata the judgment prevents the parties from relitigating only those matters that were determined. Accord, Restatement of Judgments § 68. In State v. Baker, 393 P.2d 893, 897 (Alaska 1964) (footnote omitted), this court stated: . . . parties ought not to be permitted to litigate the same issue more than once and . . . when a right or fact has been judicially determined by a court of competent jurisdiction or an opportunity for such trial has been given, the judgment of the court, so long as it remains unre-versed, should be conclusive upon the parties and those in privity with them in law or estate. See also Moran v. Poland, 494 P.2d 814, 815 (Alaska 1972). . Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970, 976 (1946) (citation omitted). . State v. Baker, 393 P.2d 893, 897 (Alaska 1964) ; compare Restatement of Judgments § 47, 48, 82. . Penmngton v. Snow, 471 P.2d 370, 375-76 (Alaska 1970). In Penmngton, following Justice Traynor's reasoning in Bernhard v. Bank of America Nat'l Trust & Sav. Ass'n, 19 Cal.2d 807, 122 P.2d 892 (1942), we held that " . . . mutuality of estoppel will not as a rule be necessary for the invocation of res judicata or collateral estoppel against a party. But our abandonment of the requirement as a rule does not mean that mutuality will in all cases be unnecessary. [I]t remains to be inquired, in each case, whether there were any unusual or exceptional factors in the prior adjudication which would warrant the application of the mutuality requirement." 471 P.2d at 377. . IB Moore's Federal Practice ¶ 0.411[1], at 1252. . We note again that this entire analysis is based on the assumption - that the federal court would have accepted jurisdiction over a claim asserted under Federal Rule 14 by respondents against petitioner third-party defendant. .Comparison is appropriate with that portion of Rule 13(a) which provides that compulsory counterclaims are required to be stated ". . . 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." Under this rule a compulsory counterclaim not pleaded is normally waived but this special exception indicates a policy of respect for the jurisdiction of other courts and an intention to prevent "forum shifting judo" by using the rules of procedure to force a party to assert his claim in the forum of his opponent's choice. See generally 3 Moore's Federal Practice ¶ 13.14 [2]. See Herrington v. Jones, 2 F.R.D. 108, 110 (E.D.La.1941), where in a similar procedural context to that presented by the case at bar, the court stated: If [the original plaintiff] thought that there existed a cause of action in his favor against the [third party defendant], the State Courts were open to him for its assertion ; it may be said in passing, that the record herein shows that plaintiff . . . had actually already brought suit against the [third party defendant] in the District Court of the State . Compare IB Moore's Federal Practice ¶ O.405[11] at 783, ¶ 0.405[12] at 787-91. We also note that no time prior to the federal trial did petitioner seek removal to the federal court or seek to dismiss the pending superior court action. Compare Padgett v. Theus, 484 P.2d 697, 704 (Alaska 1971). . While we noted in Pennington that the marital relationship conceivably might be a factor in determining whether there is an identity of interest between two spouses in a suit, we there asserted that such a relationship ". . . will not in itself be sufficient to establish privity . . . ." 471 P.2d at 376 n. 10. In the case at bar the marital relationship between the Drickersens is not a relevant factor in resolving whether there is an identity of interest because their interests are clearly adverse. A finding that Mrs. Drickersen was contributorily negligent would not act as a bar to Mr. Drickersen's claim against the United States. On the other hand, if Mr. Drickersen had been a party to the third-party claim in federal court, it would be in his interest to prove Mrs. Drickersen negligent. This is precisely what he now seeks to prove.

10350175

G.A.D., a minor, Appellant, v. STATE of Alaska, Appellee

G.A.D. v. State

1993-12-17

A-4430

100

104

865 P.2d 100

865

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:13:42.524681+00:00

CAP

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

G.A.D., a minor, Appellant, v. STATE of Alaska, Appellee.

G.A.D., a minor, Appellant, v. STATE of Alaska, Appellee. A-4430. Court of Appeals of Alaska. Dec. 17, 1993. Margi Mock, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Steven D. DeVries, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Anita L. Alves, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, for guardian ad litem. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2520

15764

OPINION MANNHEIMER, Judge. G.A.D. was adjudicated a delinquent minor for sexually abusing his three-year-old broth er. He was placed in residential sex offender treatment at the Jesse Lee Home in Anchorage. G.A.D. failed to show improvement after ten months of treatment, and he committed a new offense by escaping from the Home. As a consequence, the Jesse Lee staff, the Division of Family and Youth Services, and G.A.D.'s guardian ad litem all asked the superior court to order G.A.D. institutionalized at the McLaughlin Youth Center so that he could receive a more structured, confrontational sex offender treatment. In testimony given at the disposition hearing, G.A.D.'s mother characterized her son as manipulative, deceitful, and self-pitying. She stated that G.A.D. had failed to respond to treatment at the Jesse Lee Home because he refused to acknowledge that he had any problem. She believed that her son needed to be in a place with constant supervision, where he would be confronted about his inappropriate behavior and attitudes. Jeri Lynn Fairley, a clinical therapist employed by Alaska Children Services, works at the Jesse Lee Home treating juvenile sex offenders. Fairley testified that, despite treatment, G.A.D. continued to groom other Jesse Lee residents for sexual activity. She believed that G.A.D. posed a high danger because he was one of the few juveniles who had re-offended while participating in the sex offender program. Fairley stated that G.A.D. appeared to be extremely self-centered, showing no empathy either for his victims or for anyone else. According to Fairley, G.A.D. failed to perceive the seriousness of his conduct and failed to take responsibility for his behavior. He acted as if the Home's rules did not apply to him. Fairley concluded that G.A.D. needed "a highly structured environment so that the rules and restrictions, [and the] consequences of his behavior, [can] be clearly laid out for him." Fairley believed that G.A.D.'s suggested alternative of foster care would not be restrictive enough for him. Foster parents would not be able to provide the around-the-clock monitoring G.A.D. was receiving at the Jesse Lee Home. Fairley noted that, even with this constant monitoring, G.A.D.'s behavior had not been good at Jesse Lee. Fairley concluded that, from a therapeutic point of view, G.A.D.'s placement in a foster home would be counter-productive. She also recommended against placing G.A.D. in any group residential facility similar to Jesse Lee. Given G.A.D.'s failure to improve in the group home environment at Jesse Lee, Fairley concluded that G.A.D. needed a confrontational environment where he would receive immediate responses to his inappropriate behavior. For these reasons, Fairley recommended placing G.A.D. at the McLaughlin Youth Center. Joan Moyland, G.A.D.'s probation officer with the Division of Family and Youth Services, also testified that institutionalizing G.A.D. at the McLaughlin Youth Center would be appropriate. She reported that G.A.D. had told her that he didn't feel he was being rewarded for his good behavior at Jesse Lee, so he didn't see any reason for him to try to maintain good behavior. Moyland told the court that foster placement would not be appropriate for G.A.D. because he was not motivated to change his behavior. He had engaged in serious sexual misbehavior, and he had not responded to treatment at the Jesse Lee Home. One of the main reasons for G.A.D.'s lack of improvement at Jesse Lee was that G.A.D. did not understand that he needed treatment. Moyland believed that, until G.A.D. made significant changes in his behavior, he would continue to represent a danger to the community; and she pointed out that G.A.D. would have more opportunity to translate that danger into reality if he were placed in a foster home. Moyland also recommended against placing G.A.D. in another residential program such as the Kenai Care Center, given G.A.D.'s lack of progress at the Jesse Lee Home. Moyland, who is familiar with all the potential placements within Alaska, described the Kenai Care Center as having a program similar to that of the Jesse Lee Home, except that the rules at the Kenai Care Center are more lenient, the therapy is less intensive, and residents at the Kenai Care Center attend school in the community. (Jesse Lee has a self-contained school for the juveniles residing there.) Moyland told the court that, since G.A.D. failed to improve at the Jesse Lee Home, it was unrealistic to expect him to improve at the Kenai Care Center. Moreover, because G.A.D. would have more access to the community at the Kenai Care Center, he would pose a greater danger. Thus, she concluded, the Kenai Care Center would not be an appropriate placement for G.A.D. Moyland testified that there were no other treatment options available. Consequently, the sex offender program at the McLaughlin Youth Center represented the least restrictive treatment option that would meet G.A.D.'s needs. G.A.D. opposed the requested institutionalization. He conceded that his placement at the Jesse Lee Home had not worked. Nevertheless, he argued that the State had failed to show that institutionalization at McLaughlin was required — i.e., that no less restrictive alternative existed that would adequately achieve his rehabilitation and protect the public. G.A.D.'s attorney suggested that G.A.D. be placed in a foster home, and that he receive out-patient sex offender therapy while living there. She told the court that she would present testimony at the hearing to demonstrate that therapists were available in Anchorage "who do out-patient therapy for . sex offenders, and [also] that there are . new [treatment] groups being formed . for juvenile sex offender[s]." However, despite her offer of proof, G.A.D.'s attorney presented scant evidence about any such programs. In fact, the one witness G.A.D. did present — his guardian ad litem, Marsha Honea— told the court that foster home placement would not be appropriate. Concurring in the recommendations of G.A.D.'s mother, his therapist, and his probation officer, Honea told the court that G.A.D. needed more intensive treatment and more structure than he would get in a foster home. He needed to be placed in a structured environment where he would be "safe with others and safe with himself". Although Honea did not want to see G.A.D. placed in McLaughlin, she told the court that there were no other viable alternatives. Following this day and a half of testimony and argument, and after considering the case overnight, Superior Court Judge John Reese ordered G.A.D. committed to the sex offender treatment program at the McLaughlin Youth Center. G.A.D. appeals the superior court's order. We affirm. G.A.D. points out that Alaska Delinquency Rule 23(d) requires the superior court to choose "the least restrictive . disposition . that addresses the juvenile's treatment needs and protects the public". Even before the current Delinquency Rules were enacted, this court recognized that the superior court in a delinquency case is obliged to "consider and reject less restrictive alternatives prior to imposing] [a] more restrictive [disposition]". R.P. v. State, 718 P.2d 168, 169 (Alaska App.1986). When the State seeks institutionalization of a delinquent minor, the State bears the burden of proving, by a preponderance of the evidence, that less restrictive alternatives will not satisfy the twin goals of rehabilitating the minor and protecting the public. Alaska Delinquency Rule 11(e); Matter of J.H., 758 P.2d 1287, 1291 (Alaska App.1988); R.P. v. State, 718 P.2d at 169. There is a strong presumption against institutionalization of a minor. Matter of J.H., 758 P.2d at 1291. A minor's history of failed placements and continued violations of the law can justify the superior court's decision to institutionalize the minor. See P.R.J. v. State, 787 P.2d 123, 124-25 (Alaska App.1990). On the other hand, the "least restrictive alternative" rule "does not require that a child be allowed to fail at each [successively more restrictive] level of placement before placement in the next restrictive level may be made". Matter of J.H., 758 P.2d at 1291. Rather, the court can institutionalize a minor if the State presents substantial evidence that lesser measures will likely fail to meet the twin goals of disposition under Delinquency Rule 11(e). See Matter of J.H., 758 P.2d at 1291-93. Judge Reese's remarks at the conclusion of the hearing show that he was well aware of his duty to view institutionalization as the disposition of last resort. These remarks also show that Judge Reese sent G.A.D. to McLaughlin with considerable reluctance: It's hard to reach that conclusion. The presumption against McLaughlin placement is a very real thing for me. I don't think anybody ought to be locked up if there's any way to avoid it. But . [G.A.D. has exhibited] very dangerous conduct, [and he] has done a lot of damage to these younger children[.] . [T]his kind of conduct, this sexual conduct, and the manipulation and the lying and the evasion and so forth, has continued even in the Jesse Lee program. [G.A.D. is] someone who needs constant, close supervision and . treatment. [He] need[s] to get involved in the treatment so the treatment can be successful. This kind of treatment is . not like going to a doctor and having your appendix out. This kind of treatment you do yourself.... [G.A.D. has] to do the work. The other factor I've had in mind is the safety of the public. It's clear that [G.A.D.] must remain separated from the community if there's going to be any therapeutic success and if the public is going to be safe. Overall, . the whole situation is pretty bleak at this point. There has to be a change. [G.A.D.] is heading downhill. The initiating [conduct was] very serious and very dangerous. [G.A.D.'s] conduct at Jesse Lee has been very resistant; virtually no progress [has been made] there in rehabilitation. [GAJD.'s] conduct [at Jesse Lee] does not give me any comfort as to the safety of the community [if G.A.D. were placed] in any unsecured setting . available at this time, any that I'm aware of [or] that have been mentioned in the courtroom. Nor do I see any likelihood of therapeutic success unless [G.A.D. is] in a program with a great deal of structure to it. The McLaughlin program is the only program that can [ensure] the community's safety ., and its sex offender program, although it's similar to the Jesse Lee program, is still the best choice of treatment[.] [G.A.D.'s young] age is a very disturbing issue. He's very young, barely thirteen. All my impulses indicate . that that's too young to lock somebody up[.] . But, having listened to all the testimony and [having] read the documents, . the seriousness of [G.A.D.'s] problems and the lack of any alternative . for a secure and effective treatment program leaves [me] no choice other than the McLaughlin program. On appeal, G.A.D. contends that Judge Reese lacked a substantial basis for ordering him placed at McLaughlin. However, as described above, G.A.D.'s mother, his therapist (Fairley), his probation officer (Moyland), and his guardian ad litem (Honea) all testified in favor of institutionalization. G.A.D. attacks Fairley's and Moyland's testimony as "conclusory"; he asserts that neither Fairley nor Moyland explained why placements short of institutionalization would be inadequate. We disagree. Fairley's testimony focused primarily on the dispositional goal of rehabilitation. She testified that G.A.D. had failed to respond to sex offender treatment at the Jesse Lee Home. As noted above, G.A.D. conceded that his placement at the Jesse Lee Home was not working. Fairley also testified that, because of G.A.D.'s attitudes toward treatment and toward his offense, he needed continuous monitoring and immediate confrontation when he behaved inappropriately. The level of supervision at the Jesse Lee Home had proved inadequate, and G.A.D. would receive even less supervision if he were placed in foster care or at any group residential facility similar to Jesse Lee. Moyland's testimony focused more on the dispositional goal of protecting the public. She testified that, given the nature of G.A.D.'s misconduct, his failure to respond to treatment, and his failure to recognize that he needed treatment, G.A.D. would remain a significant danger to the community until he made substantial changes in his behavior. Moyland pointed out that if G.A.D. were placed in either foster care or the Kenai Care Center he would have less supervision and more access to the community than he did at the Jesse Lee Home. She also noted that, because G.A.D. had failed to improve at the Jesse Lee Home, it was unrealistic to expect him to improve at the Kenai Care Center. With regard to the suitability of institutionalizing G.A.D. at the McLaughlin Youth Center, Moyland testified that she was familiar with all the potential placements within Alaska and that there were no other treatment options available. Consequefitly, the sex offender program at the McLaughlin Youth Center represented the least restrictive treatment option that would meet G.A.D.'s needs and protect the public. Despite G.A.D.'s offer of proof before the hearing began, neither in his cross-examination of the State's witnesses nor in his own case did G.A.D. suggest that the State's witnesses had overlooked or substantially mis-characterized any available treatment programs or placement alternatives. The State's witnesses conceded that the McLaughlin sex offender program was not significantly different from the treatment that G.A.D. had been receiving at Jesse Lee. The hoped-for difference was that, in the closed and confrontational setting of McLaughlin, G.A.D. would be forced to recognize his problems and participate meaningfully in his own therapy — treatment goals that he had managed to circumvent at the Jesse Lee Home. G.A.D. argues that the testimony of the State's witnesses was not uniformly pessimistic — that this testimony offered some reason to believe that G.A.D. was making progress. However, our task as an appellate court is not to reweigh the evidence or see if it could possibly be interpreted in a different fashion. Rather, we must affirm the superi- or court's decision if it is supported by substantial evidence. See Matter of J.H., 758 P.2d at 1291-92. The record contains substantial evidence supporting Judge Reese's decision to commit G.A.D. to the McLaughlin Youth Center as the least restrictive alternative consistent with G.A.D.'s rehabilitation and protection of the public. Therefore, the judgement of the superior court is AFFIRMED. . G.A.D. had exposed himself to another male juvenile at the Jesse Lee Home. . On appeal, G.A.D. attacks the State for failing to discuss the specific details of G.A.D.'s treatment program at the Jesse Lee Home and for failing to provide the court with a psychological explanation of why that program was not working. We believe, however, that the sparseness of the State's evidence on this point can be squarely attributed to the fact that G.A.D. expressly conceded, at the beginning of the hearing, that the Jesse Lee treatment program was not working.

10358160

In the Matter of the ADOPTION OF J.B.K. and T.S.K. Minors

In re the Adoption of J.B.K.

1993-12-10

No. S-5346

737

741

865 P.2d 737

865

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:13:42.524681+00:00

CAP

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

In the Matter of the ADOPTION OF J.B.K. and T.S.K. Minors.

In the Matter of the ADOPTION OF J.B.K. and T.S.K. Minors. No. S-5346. Supreme Court of Alaska. Dec. 10, 1993. Julie A. Clark, Anchorage, for appellant. Fred H. Valdez, Anchorage, for appellee. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

2451

15008

OPINION MOORE, Chief Justice. In this adoption appeal, B.K., who seeks to adopt his two step-children, challenges the superior court's determination that the children's natural father, D.C., retains his right to withhold consent to the adoption pursuant to AS 25.23.050. 1. Facts and Proceedings Tanya and Dell were married in 1977. Their son J.B.K. was bom in 1978 and their daughter T.S.K. was bom in 1979. In 1980 Dell obtained a dissolution decree from an Oklahoma court. However, the couple continued to live together and later moved to Butte, Montana. In 1981 Tanya moved out of the house with the children. Nevertheless the couple remained on good terms and had frequent contact. During this period of separation, Tanya and the children went on welfare and Dell worked various odd jobs. Dell did not pay any formal child support at this time. In the spring of 1983, Tanya and the children moved to Helena, Montana. A month later, Dell left Montana and came to Alaska. In November 1983, the couple reconciled and remarried in Anchorage. Dell and Tanya finally separated in September 1986 and obtained a second dissolution decree a month later. The dissolution decree awarded custody of the children to Tanya and directed Dell to pay $400 a month in child support. Dell made only three formal support payments. Because Tanya went back on welfare after Dell moved out in September, Dell made these payments directly to the Child Support Enforcement Division. After Dell stopped making voluntary payments, the Division garnished his Permanent Fund Dividend checks and tax refunds. Dell also sporadically sent money directly to Tanya and the children. Eight months after the second divorce, Dell was convicted of sexually abusing his niece. He moved to waive all support while he was in prison and his support obligation was decreased to the minimum level of $50 per month in June 1990. Bill married Tanya in July 1990 and petitioned to adopt J.B.K. and T.S.K. in May 1991. Dell opposed the proposed adoption. Master John Duggan heard this case in a series of four hearings between October 1991 and May 1992. These hearings focused on whether Dell had forfeited his right to withhold consent to the adoption pursuant to AS 25.23.050(a)(2)(B). Bill also sought to introduce evidence that Dell had sexually abused his children. He contended that this evidence was relevant to the issue whether Dell retained the right to withhold consent, arguing that AS 25.23.180(c)(1) authorized termination proceedings on the grounds of sexual abuse as a part of an adoption proceeding. Master Duggan ruled that such evidence had no bearing on the issue of consent and refused to hear the evidence. Bill subsequently filed a motion in the superior court seeking an opportunity to inquire into Dell's alleged sexual abuse if he failed to prevail on the nonsupport issue. However, Superior Court Judge John Reese denied this motion without comment. At the hearings, Tanya testified that Dell did not support the children during the two-year period following the couple's first divorce. Although conceding that she never formally sought support from Dell, she testified that Dell refused her informal requests for help despite the fact that he was often working. Dell countered that Tanya had never asked for child support after their 1981 separation. He testified that although they maintained separate residences, he "basically lived with her" and that there was "no need to pay support." He further testified that he contributed groceries to the household. Tanya also testified that Dell had failed to make regular support payments after the 1986 divorce. Dell testified that he only made three support payments after the second divorce because he was facing criminal prosecution. He claimed that he could not meet his support obligation due to his incarceration. Master Duggan filed his report in May 1992, finding that Dell had "failed significantly and without justifiable excuse to provide support for the subject children for at least one year between the fall of 1981 and December of 1983." He therefore recommended that Dell's consent for the proposed adoption be waived for unexcused nonsupport. In support of his recommendation, Master Dug-gan cited Dell's "ongoing pattern of infrequent, involuntary and/or inadequate child support paid [between September 1986 through 1990]". Judge John Reese rejected the Master's report and recommendations, ruling that "[t]he remoteness of the one year period of nonsupport and the intervening remarriage make the holding of the court in [In re 718 P.2d 948 (Alaska 1986)] inapplicable to this case." Bill's motion for reconsideration was denied and the petition for adoption was dismissed on Dell's motion in August 1992. This appeal followed. II. Discussion A. Failure to support Alaska Statute 25.23.050(a)(2) provides, in part, that consent to adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause, including but not limited to indigency, (A) to communicate meaningfully with the child, or (B) to provide for the care and support of the child as required by law or judicial decree.... In In re 718 P.2d 948 (Alaska 1986), we held that the 12-month period of nonsupport required for a waiver of the right to withhold consent to adoption need not immediately precede the filing of the adoption petition. Id. at 954-55. (C)ourts shall consider a parent's entire history of support or nonsupport to determine whether that parent has waived his or her right to block a child's adoption by a step-parent. Id. at 955. Bill contends that the trial judge erred in concluding that Dell had not forfeited his right to withhold consent to the adoption given Master Duggan's finding that Dell had failed, without justifiable excuse, to support his children between 1981-88. We disagree. The cited period of nonsupport ended in Dell and Tanya's remarriage in 1983. We agree with Judge Reese that the three-year remarriage renders previous periods of nonsupport irrelevant for the purpose of determining whether Dell had forfeited his right to consent. In those rare cases where a couple decides to remarry after a period of separation, we believe that it is appropriate to treat this as a renewal of their rights and obligations as parents. A remarriage obviously nullifies the custody and support provisions of the previous divorce decree. See Ringstrom v. Ringstrom, 101 Ill.App.3d 677, 57 Ul.Dec. 193, 428 N.E.2d 743 (1981); Davis v. Davis, 68 Cal.2d 290, 66 Cal.Rptr. 14, 437 P.2d 502 (1968); see generally Debra E. Wax, Annotation, Effect of Remarriage of Spouses to Each Other on Child Custody and Support Provisions of Prior Divorce Decree, 26 A.L.R.4th 325 (1983). Disputes over custody and child support existing between the parties prior to the remarriage should be put to rest as well. Ringstrom, 57 Ill.Dec. at 195, 428 N.E.2d at 745. Although Dell has demonstrated a sporadic pattern of support after the second divorce, the statutory period has not been satisfied. We therefore affirm Judge Reese's ruling. B. Bill's right to initiate termination proceedings Bill contends that AS 25.23.180 explicitly provides that an interested private party may initiate termination proceedings on the grounds specified in AS 47.10.080(c)(3). He argues that Judge Reese therefore erred in denying his motion for a hearing to inquire into Dell's history of child sexual abuse. Alaska Statute 25.23.180(c) provides: The relationship of parent and child may be terminated by a court order issued in connection with a proceeding under this chapter or a proceeding under AS 47.10: (1) on the grounds specified in AS 47.10.-080(c)(3); (2) on the grounds that a parent who does not have custody is unreasonably withholding consent to adoption, contrary to the best interest of the minor child; or (3) on grounds that the parent committed an act constituting sexual assault or sexual abuse of a minor under the laws of this state or a comparable offense under the laws of the state where the act occurred that resulted in conception of the child and that termination of the parental rights of the biological parent is in the best interests of the child. Dell contends that a child in need of aid (CINA) adjudication must precede adoption proceedings for AS 25.23.180(c)(1) to apply. Dell's interpretation of the statute is inconsistent with the Adoption Rules promulgated by this court and with the language of the statute itself. Alaska Statute 25.23.180(c) clearly states that parental rights may be terminated "in connection with a proceeding under this chapter or a proceeding under AS 47.10 . on the grounds specified in AS 4.7.10.080(c)(3)-" (Emphasis added). There is no question that Bill has standing as "an interested party" to initiate termination proceedings under AS 25.23.-180(e) or that he, in fact, sought termination of Dell's parental rights under AS 25.23.180(c)(1) when he filed the adoption petition. Thus the superior court erred in denying Bill's motion for a hearing on Dell's alleged abuse of his children. Under AS 25.23.180(c)(1), Bill may seek to terminate Dell's parental rights in connection with the adoption proceedings on the grounds specified in AS 47.10.080(c)(3). We therefore remand this case for farther proceedings consistent with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED. . In order to preserve the anonymity of the parties as required by AS 25.23.150(c), and for the reader's convenience, we will use "Bill" and "Dell" as placeholders for B.K.'s and D.C.'s names. In addition, we will use "Tanya" as a placeholder for the mother's name. . No support provisions were apparently included in the Oklahoma divorce decree which awarded custody of the children to Dell. However, Dell concedes that the Montana Child Support Enforcement Agency Division did contact him about making support payments. . These payments occurred in September and November 1986 and January 1987. . AS 25.23.050(a)(2)(B) provides that consent to adoption is not required of a parent who has failed significantly and without justifiable cause to provide for the care and support of a child for at least one year. .AS 25.23.180(c)(1) authorizes the court to terminate parental rights in either adoption or child in need of aid proceedings on the grounds specified in AS 47.10.080(c)(3). Such grounds include child abuse. A decree terminating the rights of a parent dispenses with the need for that parent's consent to adoption. AS 25.23.-180(d). . Although Dell's last voluntary formal support payment occurred in January 1987, the 12-month statutory period of nonsupport without justifiable cause has not been satisfied after the second divorce. Only four months passed between Dell's last voluntary support payment and his incarceration in May 1987. We previously have held that the neglect of parental duties caused by imprisonment is not necessarily wilful and thus does not inevitably result in the loss of the parent's right to consent. See R.N.T. v. J.R.G., 666 P.2d 1036, 1039 (Alaska 1983). In this case Bill appears to concede that the unexcused period of nonsupport following the second divorce falls short of one year. . It is within the special competency of this court to independently construe a statute. O'Callaghan v. State, 826 P.2d 1132, 1134 n. 2 (Alaska 1992), cert. denied, — U.S.-, 113 S.Ct. 176, 121 L.Ed.2d 122 (1992). . AS 47.10.080(c)(3) provides, in part, that a court may determine by order, upon a showing in the adjudication by clear and convincing evidence that there is a child in need of aid under AS 47.10.010(a)(2) as a result of parental conduct and upon a showing in the disposition by clear and convincing evidence that the parental conduct is likely to continue to exist if there is no termination of parental rights.... AS 47.10.010(a)(2)(D) provides that a child may be found in need of aid where the child has been sexually abused or where there is imminent and substantial danger that the child will be sexually abused. . The Alaska Adoption Rules explicitly provide that a petition for termination may be combined with a petition for adoption. Adoption Rule 6 provides, in part: (c) Petition for Involuntary Termination. A petition for termination based on the involuntary termination of parental rights pursuant to AS 25.23.180(c)(l)-(3) must state, in addition to the information required by paragraph (a), the specific statutory and factual basis of the claim that parental rights should be involuntarily terminated. (d) Relationship of Petitions to Terminate Parental Rights and to Adopt. (1) A petition to terminate parental rights under paragraph (b) or (c) of this rule may be combined with a petition for adoption. Adoption Rule 13 provides, in part: (b) Involuntary Termination of Parental Rights. Proceedings for the involuntary termination of parental rights in conjunction with adoption proceedings must comply with CINA Rule 18, except as otherwise provided by AS 25.23.180(c)(2) and (3). 25 U.S.C. Section 1912 also applies to all involuntary termination proceedings involving an Indian child. Although neither party cited to the Adoption Rules in the proceedings below or on appeal, these rules clearly contemplate termination proceedings in the adoption context. Inquiry into a parent's history of child sexual abuse would clearly be relevant in termination proceedings under AS 25.23.180(c)(1). .A petition for termination of the parent-child relationship may be brought in connection with an adoption proceeding by "another person having a legitimate interest in the matter." AS 25.23.180(e).

10358262

EARTH MOVERS OF FAIRBANKS, INC., Appellant, v. FAIRBANKS NORTH STAR BOROUGH, Appellee

Earth Movers of Fairbanks, Inc. v. Fairbanks North Star Borough

1993-12-17

No. S-5186

741

745

865 P.2d 741

865

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:13:42.524681+00:00

CAP

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

EARTH MOVERS OF FAIRBANKS, INC., Appellant, v. FAIRBANKS NORTH STAR BOROUGH, Appellee.

EARTH MOVERS OF FAIRBANKS, INC., Appellant, v. FAIRBANKS NORTH STAR BOROUGH, Appellee. No. S-5186. Supreme Court of Alaska. Dec. 17, 1993. Rehearing Denied Jan. 10, 1994. Joseph L. Paskvan, Hoppner & Paskvan, P.C., Fairbanks, for appellant. Mark Andrews, Asst. Borough Atty., Fairbanks, for appellee. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

2518

15861

OPINION MATTHEWS, Justice. The Fairbanks North Star Borough Department of Community Planning (Department) determined that Richard Wagner possessed grandfather rights to extract gravel from a pit he owned in the Borough. In this case, Earth Movers of Fairbanks, Inc., (Earth Movers) appeals the superior court's holding that Earth Movers did not have standing to challenge that determination. I. FACTUAL AND PROCEDURAL BACKGROUND The property at issue is located a few miles north of Fairbanks, off Farmers Loop Road. The property was used from 1962 to 1965 as a source of gravel for construction of Farmers Loop Road. In 1965, the property was sold to the current owner, Richard Wagner. In October 1975, the property was rezoned from Unrestricted Use to Rural Estate 2. Use of land as a gravel pit is prohibited in a Rural Estate 2 zone. However, the 1975 rezoning granted grandfather rights for non- , conforming uses which were in existence at the time of the zoning changes. The ordinance in effect at the time provided that nonconforming uses, such as a gravel pit, could continue "provided any such nonconforming use which is discontinued for a period of twelve months may not be re-established." Fairbanks North Star Borough Ordinance (FNSBO) 18.40.010 (1975). Wagner, after receiving notice in 1988 that the state was upgrading Farmers Loop Road, inquired of the Borough whether he could extract gravel from the property for the project. The Department decided that Wagner had grandfather rights to use the pit. Earth Movers objected to the Department's decision. Wagner filed a response, challenging Earth Movers' standing to dispute the Department's decision. Earth Movers' appeal was heard by the Borough Assembly, sitting as a Board of Adjustment. The Board of Adjustment upheld the decision of the Department, and found that Earth Movers had no standing to challenge the previous decision. Earth Movers appealed to the superior court, which held that Earth Movers had no standing and dismissed the appeal. Earth Movers appeals. II. DISCUSSION A. Does Earth Movers Have Standing to Challenge the Board's Decision? 1. Applicable Zoning Statutes and Ordinances In Alaska, "[t]he concept of standing has been interpreted broadly." Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987). "The basic requirement for standing in Alaska is adversity." Id. (citing Moore v. State, 553 P.2d 8, 24 n. 25 (Alaska 1976)). Thus, we have held that "[s]tanding questions are limited to whether the litigant is a 'proper party to request an adjudication of a particular issue.' " Moore, 553 P.2d at 24 n. 25 (quoting Flast v. Cohen, 392 U.S. 83, 100-01, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968)). Both parties vigorously argue whether Earth Movers is a proper party to challenge the Department's decision. General Alaska standing law is not applicable in this case. In the area of land use law, the legislature has chosen to limit standing by statute. Therefore, we must look to the applicable statutes and ordinance for guidance in determining whether Earth Movers has standing. The statutes and ordinance provide for two levels of review, initially to a board and then to the superior court. At level one, AS 29.40.050(a) provides in part: Appeals from administrative decisions, (a) By ordinance the assembly shall provide for an appeal from an administrative decision of a municipal employee, board, or commission made in the enforcement, administration, or application of a land use regulation adopted under this chapter. The assembly may provide for an appeal to a court, hearing officer, board of adjustment, or other body. Pursuant to this statute, the Borough enacted an ordinance providing: Appeals. A. Initiation of Appeal. Decisions may be appealed to the appeals officer or the board of adjustment by: 3. Any person adversely affected by a decision or determination made by the director of the department of community planning in the enforcement of this ordinance. . FNSBO 18.54.070(A)(3) (1992) (emphasis added). Thus, in order to appeal to the Board of Adjustment from the Department's determination that Wagner had grandfather rights, Earth Movers must be a party "adversely affected." At level two, AS 29.40.060 provides: Judicial review, (a) The assembly shall provide by ordinance for an appeal by a municipal officer or person aggrieved from a decision of a hearing officer, board of adjustment, or other body to the superior court. (Emphasis added.) In accordance with this statute, the Borough ordinance provides: F. Judicial Review. Either the appellant or appellee [sic] may appeal the decision of the appeals officer or the board of adjustment to the superior court. Appeals shall be made in accordance with the Alaska Rules of Civil Procedure. FNSBO 18.54.070(F). Reading the ordinance in conjunction with AS 29.40.060, in order to appeal the Board of Adjustment's determination, Earth Movers must be a party "aggrieved." Thus, in the area of zoning we are faced with apparently different standing requirements at different levels of appeal: a party "adversely affected" and a party "aggrieved." We resolve this conflict by interpreting the phrase "adversely affected" as used in the ordinance to mean the same as the word "aggrieved" as used in the statute. We do so because of the context of the statutes and ordinance — zoning. "The zoning enabling acts commonly authorize judicial review of decisions of a board of adjustment at the instance of 'a person or persons jointly or severally aggrieved' by the decision in question." 83 Am.Jur.2d Zoning and Planning § 1027 (1992). The legislature chose to provide review for those "aggrieved," indicating that it follows the general practice of review in zoning cases. 2. Is Earth Movers a "Person Aggrieved"? In general, the requirement of "ag-grievement" in zoning cases is not considered to include the threat of potential business competition. The prevention of competition is not a proper element of zoning. A person whose sole interest for objecting to the zoning board's action is to prevent competition with his business is not a person aggrieved. It is not the function of ordinances to provide economic protection for existing enterprises, and the fact that such businesses may suffer reduced incomes or that the property would depreciate in value will not confer standing on these owners.... 83 Am.Jur.2d Zoning and Planning § 1034 (1992) (footnote omitted). In zoning cases, the vast majority of jurisdictions do not allow standing solely on the basis of potential business competition. Courts generally rely on two theories for holding that potential business competition is not sufficient to confer standing. First, courts point out that competitors do not fall within the "zone of interest" that zoning regulations protect. The Supreme Judicial Court of Massachusetts discussed this rationale extensively in Circle Lounge & Grille, Inc. v. Board of Appeal, 324 Mass. 427, 86 N.E.2d 920 (1949). The court noted that the purpose of zoning was not to protect business from competition; rather [t]he primary purpose of zoning with reference to land use is the preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods.... The residence zone was designed to protect residence against business. It was not designed to protect business against business. Id. 86 N.E.2d at 923. Under this rationale, proper parties to challenge the Board's decision granting Wagner grandfather rights would include the neighbors directly affected by the increased commercial activity in their neighborhood or others whose affected interests relate to the purpose of the zoning ordinance. See also Swain v. County of Winnebago, 111 Ill.App.2d 458, 250 N.E.2d 439, 444 (1969) ("It is not the function of the county zoning ordinances to provide economic protection for existing businesses."); Sun-Brike Car Wash, Inc. v. Board of Zoning & Appeals, 69 N.Y.2d 406, 515 N.Y.S.2d 418, 423, 508 N.E.2d 130, 135 (1987) ("Zoning laws do not exist to insure limited business competition."). The second rationale courts use to support denying business competitors standing is a "vested rights" argument. Courts reason that "no person has a vested right to engage in business without competition.... Never having been possessed of a right to conduct a business free of competition, the landowner has lost nothing and cannot be said to have been aggrieved." 3 Arden H. Rathkopf & Daren A. Rathkopf, The Law of Zoning and Planning § 43.07, at 43-53 (1992). The Appellate Court of Illinois noted that "[a] person can have no vested or special property right in either the monopoly or competitive advantage accorded by zoning restrictions at a given time." Swain, 250 N.E.2d at 444. We think both theories have merit. In the area of land use law, we thus adopt the majority rule and deny standing to a business competitor whose only alleged injury results from competition. Earth Movers argues that "[n]o one other than those with interests in lawfully operated gravel pits have greater interests in preserving the laws of gravel pits than those similarly situated to Earth Movers and Earth Movers itself." In terms of Earth Movers' interest in limiting competition in gravel sales, this may be correct. That interest is, however, irrelevant because it is not an interest meant to be protected by the zoning ordinance. III. CONCLUSION We interpret the applicable statutes and ordinance to require that a person be "aggrieved" in order to appeal a decision by a zoning board. We adopt the majority interpretation of "aggrieved" to deny standing in land use cases to a business competitor whose only alleged injury is potential increased competition. Therefore we AFFIRM the decision of the superior court which affirmed the decision of the Board of Adjustment denying Earth Movers standing to challenge the Department's holding. . A nonconforming use has been defined as a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the zoning restrictions applicable to the area in which it is situated. Such a use has also been described as a vested property right that zoning ordinances generally may not abrogate. 83 Am.Jur.2d Zoning and Planning § 624 (1992). . The ordinance was amended in 1988 to require that grandfather rights were to be discontinued if the nonconforming use ceased for thirty-six months, rather than twelve months. FNSBO 18.56.030(B)(2). . Earth Movers claimed that, as the owner of gravel pit rights within the Borough, it would be adversely affected by the Department's mistaken allowance of Wagner's nonconforming use. . In order to maintain the gravel pit as a nonconforming use, ordinances clearly required Wagner to have used the pit commercially within the specified time frames. Earth Movers argues strenuously, and the Borough concedes, that in affirming the Department, the Board of Adjustment misinterpreted the law. The Board of Adjustment issued a finding of fact stating "[t]he Borough zoning code for the period 1975-1988 did not require commercial [activity]...." Although it is clear that the Board of Adjustment was wrong in not requiring a showing of commercial activity, the existence of the wrong does not in itself give Earth Movers standing. Earth Movers must still show that it has standing to challenge that incorrect finding. .Where the superior court acts as an intermediate appellate court, this court owes no deference to its decision, but, "[ijnstead . independently scrutinize^] directly the merits of the administrative determination." Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). In order to determine if Earth Movers has standing, we must interpret the applicable statutes and ordinance. Thus we address questions of law, and the appropriate stan dard of review is de novo. Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). . In general, standing in zoning cases has been more restrictive than general standing principles, primarily in order to prevent excessive litigation and undue delay of final dispositions. 83 Am. Jur.2d Zoning and Planning § 1026 (1992). As one court noted, [allowing the threat of increased competition to confer standing could open a new and inappropriate battleground for business competition: the planning and zoning boards of each municipality in the State. This battleground would unduly tax the resources of our municipalities as well as impair our commitment to a free enterprise system. Paramus Multiplex Corp. v. Hartz Mountain Indus., Inc., 564 A.2d 146, 149 (N.J.Super.1987). . See also 101A CJ.S. Zoning & Land Planning § 267(b) (1979) ("Generally, a person is not 'aggrieved' merely because the permit, variance, exception, or rezoning will increase competition in the business of the party seeking review.... "); 3 Arden H. Rathkopf & Daren A. Rathkopf, The Law of Zoning and Planning § 43.07, at 43-53 (1992) (" 'Aggrievement' sufficient to confer standing to challenge rezoning, or the grant of a variance, or a special permit, has traditionally been denied where its basis has been that the business competition which would result from the zoning action complained of would adversely affect the interests of the complainant."). . See Gregorio v. Zoning Bd. of Appeals, 155 Conn. 422, 232 A.2d 330, 333 (1967) ("The fact that the proposed gasoline station would result in competition harmful to the plaintiff's business would not be sufficient to qualify the plaintiff as an aggrieved person."); Swain v. County of Winnebago, 111 Ill.App.2d 458, 250 N.E.2d 439, 444 (1969) ("Neither the fact that parties may suffer reduced incomes or be put out of business by more vigorous or appealing competition . give rise to a standing to sue."); Lucky Stores, Inc. v. Board of Appeals, 270 Md. 513, 312 A.2d 758, 766 (1973) ("[A] person whose sole interest for objecting to the Zoning Board's action is to prevent competition with his established business is not a person aggrieved."); Circle Lounge & Grille, Inc. v. Board of Appeal, 324 Mass. 427, 86 N.E.2d 920, 922 (1949) ("We cannot believe that a person is aggrieved . merely because a variance, even if improvidently granted, will increase competition in business."); Redstone v. Board of Appeals, 11 Mass.App. 383, 416 N.E.2d 543, 544 (1981) ("A party is not, however, aggrieved . because the zoning relief granted may result in business competition."); Copple v. City of Lincoln, 210 Neb. 504, 315 N.W.2d 628, 630 (1982) ("An increase in business competition is not sufficient to confer standing to challenge a change of zone."); Paramus Multiplex Corp. v. Hartz Mountain Indus., Inc., 236 N.J.Super. 104, 564 A.2d 146, 148 (l987) ("This court holds that increased competition does not . of itself confer standing."); Sun-Brite Car Wash, Inc. v. Board of Zoning & Appeals, 69 N.Y.2d 406, 515 N.Y.S.2d 418, 422, 508 N.E.2d 130, 134 (1987) ("Sun-Brite lacks standing to seek judicial review because . its only substantiated objection was the threat of increased business competition, which is not an interest protected by the zoning laws."). . Of course, a business competitor who can show other injuiy, such as a deleterious effect on traffic patterns, parking, etc., should not be denied standing simply because he is also a competitor.

11570635

Dorothea HOOPLE, Appellant, v. STATE of Alaska, Appellee

Hoople v. State

1999-07-16

No. A-7165

1004

1006

985 P.2d 1004

985

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Dorothea HOOPLE, Appellant, v. STATE of Alaska, Appellee.

Dorothea HOOPLE, Appellant, v. STATE of Alaska, Appellee. No. A-7165. Court of Appeals of Alaska. July 16, 1999. Verne E. Rupright, Wasilla, for Appellant. Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1101

6896

O PINION MANNHEIMER, Judge. Under Alaska law, the offense of driving-while intoxicated is normally a misdemean- or. But AS 28.35.030(n) declares that this offense is a class C felony if, within the previous five years, the defendant has been convicted two or more times for either driving while intoxicated or refusing to submit to a breath test. Dorothea Hoople was convicted of felony DWI under this statute. On appeal, she argues that this statute violates the constitutional guarantee of due process because it fails to require proof that the defendant acted with a culpable mental state regarding the defendant's prior convictions. Hoople's argument runs counter to our decisions in Bell v. State , Ortberg v. State , and Noblit v. State . All three of these cases dealt with situations in which an offense was divided into degrees: one statutory provision defined the basic crime, while another provision declared that a defendant was guilty of a higher degree of crime if they committed the basic crime under specified aggravating circumstances. (In Bell, the class A misdemeanor of promoting prostitution in the third degree (inducing a person to engage in prostitution) was aggravated to a class B felony because the victim was under the age of 16. In Ortberg, the class B misdemeanor of fourth-degree criminal mischief (intentionally damaging someone else's property) was aggravated to a class C felony because the property was worth $500 or more. And in Noblit, the class B misdemeanor of hindering prosecution in the second degree (rendering assistance to a criminal) was aggravated to a class C felony because the defendant rendered assistance to a criminal who had committed a felony. ) In all three of these cases, we held that a defendant could be convicted of the higher degree of crime without proof that the defendant possessed any culpable mental state regarding the aggravating circumstance that distinguished the higher degree of crime from the basic crime. Bell and Noblit are arguably distinguishable from Hoople's case because, in both Bell and Noblit, the legislative commentary to. the statutes in question expressly indicated that the legislature did not intend for the government to prove any culpable mental state regarding the aggravating circumstance. But in Ortberg (the case involving purposeful destruction of property), there was no such commentary. This court simply relied on the doctrine that, when the defendant's basic underlying conduct is criminal, no culpable mental state need be proved with respect to an aggravating circumstance that raises the degree of the crime. In fact, Hoople's argument is even less compelling than the argument in Ort-berg. This is because Hoople's basic crime— driving while intoxicated — does not require proof of any culpable mental state regarding the circumstance that makes the driving illegal (the fact that the driver was intoxicated or that the driver's blood-alcohol content exceeded .10 percent). In Morgan v. Anchorage and Van Brunt v. State , this court rejected arguments that the crime of driving while intoxicated would violate the due process clause unless it was interpreted to require proof of a culpable mental state regarding the driver's intoxication. As we stated in Morgan, It . does not make sense to allow a [driver] to claim that his intentional consumption of alcohol impaired his ability to know that he was intoxicated_ [A] person who drinks and drives [must] be responsible for not drinking to the point where he is under the influence!.] He should drive at his [own] peril rather than only at the public's peril. We find no due process violation [in defining the offense so as not to require proof of any culpable mental state vis a vis the driver's intoxication]. Thus, Hoople's underlying crime does not require proof that she acted with a culpable mental state concerning the circumstance that made her driving criminal in the first place (her intoxication or blood-alcohol content). This being true, it would make little sense to require proof that Hoople acted with a culpable mental state concerning the aggravating factor (her prior convictions) that raised her offense to a felony. We also note that, although Hoople's argument may be intriguing from a theoretical standpoint, it has little practical effect. Under the due process clauses of the federal and state constitutions, a person can not be validly convicted of a crime unless they are personally present at their trial and sentencing (or unless they knowingly and voluntarily waive their right to be present). Because of this, if a person has prior convictions for driving while intoxicated or refusing a breath test, it is all but impossible for that person to commit DWI without either recklessly or negligently disregarding those prior convictions. This fact bolsters our conclusion that Alaska's felony DWI statute passes constitutional muster even though the government need not prove that the intoxicated driver acted with a culpable mental state with regard to their prior convictions. For these reasons, we hold that Alaska's felony DWI statute, AS 28.35.030(n), does not require proof that the defendant acted with any culpable mental state regarding their prior convictions. We further hold that AS 28.35.030(n) (construed in this fashion) does not violate the due process guarantees of the federal and state constitutions. The judgement of the superior court is AFFIRMED. . See AS 28.35.030(a)-(b). . See AS 28.35.030(o)(4), which defines "previously convicted" for purposes of establishing felony DWI. . See the United States Constitution, Fourteenth Amendment, and the Alaska Constitution, Article I, Section 7. . 668 P.2d 829 (Alaska App.1983). . 751 P.2d 1368 (Alaska App.1988). . 808 P.2d 280 (Alaska App.1991). . See AS 11.66.130(a)(2) and AS 11.66.110(a)(2). . See AS 11.46.486(a)(2) and AS 11.46.482(a)(1). . See AS 11.56.780(a) andAS 11.56.770(a). . 643 P.2d 691, 692 (Alaska App.1982). . 646 P.2d 872, 873 (Alaska App.1982). . 643 P.2d at 692. . See State v. Goding, 126 N.H. 50, 489 A.2d 579, 580 (N.H.1985) (holding that the enhancement of driving while intoxicated from a violation to a misdemeanor, based on a prior conviction for the same offense, did not add a mens rea element to the crime). . See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912).

11570862

STATE of Alaska, Petitioner, v. Erwin MORGAN, Respondent

State v. Morgan

1999-09-03

No. A-7040

1022

1024

985 P.2d 1022

985

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

STATE of Alaska, Petitioner, v. Erwin MORGAN, Respondent.

STATE of Alaska, Petitioner, v. Erwin MORGAN, Respondent. No. A-7040. Court of Appeals of Alaska. Sept. 3, 1999. Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellant. Lori M. Bodwell, Fairbanks, for appellee. Before COATS, Chief Judge, MANNHEIMER and STEWART, Judges.

1621

9950

OPINION COATS, Chief J. This petition presents us with a question of statutory interpretation. The question before us is whether Morgan could be convicted under AS 11.46.290(a) of obtaining a credit card by fraudulent means when he only obtained the credit card number and not the physical card. We conclude that, for these purposes, the credit card number is the "credit card." Karen Shields was romantically involved with Christopher Wall, and she revealed her AT & T calling card number to him. After the relationship ended, Wall gave Shields' calling card number to Erwin Morgan, a fellow inmate at the Fairbanks Correctional Center. (Wall revealed this information to Morgan to pay off a debt.) Morgan used the calling card number to place $3,669.45 worth of long-distance telephone calls without Shields' permission. As a result, the state charged Morgan with three counts: theft in the second degree, fraudulent use of a credit card, and obtaining a credit card by fraudulent means. The first two counts were merged at trial. It was undisputed that Morgan never physically possessed the plastic AT & T card at any time. At the close of the state's case, Superior Court Judge Charles R. Pengilly ruled that AS 11.46.290(a)(1) required proof of the defendant's possession of a physical object, not just the credit card number. He therefore granted Morgan's motion for judgment of acquittal on the charge of obtaining a credit card by fraudulent means. Morgan's case was submitted to the jury solely on the remaining count of theft. The jury was ultimately unable to reach a verdict on this charge, and Judge Pengilly declared a mistrial. The state has petitioned us to review Judge Pengilly's ruling dismissing the charge of obtaining a credit card by fraudulent means. We conclude that possession of a credit card number itself is sufficient to sus tain a conviction for fraudulently obtaining a credit card under AS 11.46.290(a)(1). Morgan was charged under AS 11.46.290(a)(1), which states (in pertinent part) that a person commits the crime of obtaining a credit card by fraudulent means if the person "buys a credit card from a person other than the issuer." In order to resolve the question before us, we must determine whether the credit card number itself constitutes a "credit card" as that term is used in this statute. Alaska Statute 11.81.900(b)(8) defines "credit card" as any instrument or device, whether known as a credit card, credit plate, courtesy card, or identification card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining property or services on credit[.] Thus, the question is whether a credit card number qualifies as an "instrument or device . for the use of the cardholder in obtaining property or services on credit." Turning to several dictionaries in common use, we find that the word "device" is not limited to physical objects. For example, Black's Law Dictionary defines "device" as "an[y] invention or contrivance," as well as any "plan." Similarly, Webster's Dictionary defines "device" as "a thing devised", a "plan" or "scheme." And Merriam-Webster's Collegiate Dictionary defines "device" as "[something] designed to serve a special purpose or perform a special function." Under these definitions, Shields' AT & T credit card number constitutes a "device" for allowing long-distance telephone calls to be made on credit. Policy considerations and case law support the conclusion that a credit card number is included in the definition of "credit card." As the Arkansas Supreme Court recognized in Patterson, v. State, "[i]t is the use of the account numbers on a credit card which gives the plastic card any credit value." Most people are aware that once they memorize the number on their plastic credit card, they no longer need the plastic card to make long-distance telephone calls or to purchase other goods or services over the telephone or across the Internet. In these transactions, merchants and buyers do not meet face-to-face, and merchants do not demand proof that the buyer is holding a plastic card. Rather, the buyer's knowledge of the credit card number is what allows the buyer to make these purchases on credit. Physical possession of the plastic card is unnecessary, for the value of the card resides in the number. In Patterson, the defendant was convicted of the fraudulent use of a credit card when she used someone else's credit card to obtain clothing from a department store. Patterson appealed, arguing that the state fáiled to prove that the physical credit card had ever been stolen from the rightful owner's possession. The court concluded that it was the account number that gives the credit card its value, not the actual piece of plastic. It was therefore sufficient for the state to show that Patterson, without authorization, used another person's credit card account number to obtain merchandise. The Supreme Court of Kansas reached the same result in State v. Howard. In Howard, the defendant wrote down a Sears credit card account number on a piece of paper, then used the account number to purchase a television set. He argued on appeal that he could not be convicted because there was no evidence that he used the actual plastic card. The court concluded that the statute covered unauthorized use of the account number. Morgan argues that cases such as Patterson and Howard are not on point because the defendants in those cases were charged with fraudulent "use" of a credit card, not "obtain ing" a credit card. But the same statutory definition of "credit card" governs, whether a defendant is charged with fraudulent use of a credit card under AS 11.46.285(a) or with unlawfully obtaining a credit card under AS 11.46.290(a). Thus, we conclude that Patterson and Howard are pertinent to our decision. Morgan also relies on People v. Tansey for the proposition that a defendant must physically possess the plastic card, not merely the account number. However, the defendant in Tansey was charged with possession of stolen property, and the New York court concluded that the statutory definition of this crime required proof that the defendant possessed something "tangible." Tansey turned on the specific language of the New York Penal Code, and it therefore has little relevance to the question facing us — the proper construction of "credit card" as that term is used in the Alaska statutes. For the reasons explained above, we conclude that a credit card account number is a "device" for obtaining goods or services on credit. We therefore hold that the definition of "credit card" contained in AS 11.81.900(b)(8) does not refer solely to tangible physical objects, but rather includes credit card account numbers. We accordingly conclude that Morgan obtained a "credit card" when he obtained Shields' AT & T account number, even though he never possessed the plastic card. Judge Pengilly was wrong to grant Morgan a judgment of acquittal on this charge. Morgan contends that, even if Judge Pen-gilly's ruling was erroneous, that ruling — the granting of a judgment of acquittal- — nevertheless bars the state from renewing its prosecution of this charge. Morgan argues that any renewal of the prosecution would violate the double jeopardy provisions of the United States and Alaska Constitutions. Morgan raises a difficult legal issue. The parties' briefs are of little assistance to us; each party devotes hardly more than a page of argument to the double jeopardy question. Morgan's brief, for example, assumes that Judge Pengilly ruled in his favor on the factual elements of the offense; he does not address the issue of whether double jeopardy would bar renewed prosecution if Judge Pen-gilly's ruling amounted to a legal ruling that, based on the indictment and the state's underlying case, the state failed to allege a crime. Fortunately, we conclude that we need not resolve Morgan's double jeopardy claim because the issue is not yet ripe. As noted above, Morgan's trial ended in a mistrial; the charges against Morgan remain unresolved. If the state chooses to prosecute Morgan only under the other statutes that criminalize his conduct, then the double jeopardy issue presented in this appeal will not arise. If the state does choose to reprosecute Morgan on the charge of obtaining a credit card by fraudulent means, this would give Judge Pengilly an opportunity to clarify the nature of his ruling and, ultimately, this would give the parties the opportunity to brief the double jeopardy issue in a more meaningful fashion. The superior court's ruling concerning the meaning of "credit card" in AS 11.81.900(b)(8) is REVERSED. We express no opinion as to whether Morgan can again be prosecuted for the dismissed count of obtaining a credit card by fraudulent means. . AS 11.46.130. . AS 11.46.285. . AS 11.46.290(a)(1). . Black's Law Dictionary 452 (6th ed.1990). . Webster's New World Dictionary 377 (3rd College ed.1988). . Merriam-Webster's Collegiate Dictionary 317 (10th ed.1993). . 326 Ark. 1004, 935 S.W.2d 266, 267 (1996). . See id. . See id. . 221 Kan. 51, 557 P.2d 1280, 1282-83 (1976). . See id. at 1283. . 156 Misc.2d 233, 593 N.Y.S.2d 426 (N.Y.Sup.Ct.1992). . Compare State v. Martushev, 846 P.2d 144, 148 (Alaska App.1993) with United States v. Scott, 437 U.S. 82, 94-99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), for an illustration of the complexity in distinguishing between an acquittal, based upon a resolution of the factual elements of an offense, and a dismissal, based upon solely legal grounds.

10345357

Keith REVELLE, Appellant and Cross-Appellee, v. Wilda MARSTON; Mayor Tom Pink; the Municipality of Anchorage; and the Anchorage Library Advisory Board, Appellees and Cross-Appellants

Revelle v. Marston

1995-06-16

Nos. S-5463, S-5493

917

929

898 P.2d 917

898

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:17:46.954789+00:00

CAP

Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ., and ALEXANDER O. BRYNER, J. pro tern.

Keith REVELLE, Appellant and Cross-Appellee, v. Wilda MARSTON; Mayor Tom Pink; the Municipality of Anchorage; and the Anchorage Library Advisory Board, Appellees and Cross-Appellants.

Keith REVELLE, Appellant and Cross-Appellee, v. Wilda MARSTON; Mayor Tom Pink; the Municipality of Anchorage; and the Anchorage Library Advisory Board, Appellees and Cross-Appellants. Nos. S-5463, S-5493. Supreme Court of Alaska. June 16, 1995. Don Cloeksin, Sonosky, Chambers, Sachse, Miller, Munson & Cloeksin, Anchorage, for appellant/cross-appellee. Stephanie Galbraith Moore, Asst. Mun. Atty., and Richard L. McVeigh, Mun. Atty., Anchorage, for appellees/cross-appellants. Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ., and ALEXANDER O. BRYNER, J. pro tern. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

6963

43465

OPINION RABINOWITZ, Justice. I. INTRODUCTION In January 1988 the newly elected Mayor of the Municipality of Anchorage, Tom Fink, terminated Keith Revelle's employment as Head Librarian for the Municipality. Mayor Fink relied on an evaluation that the Anchorage Library Advisory Board (LAB) had formulated at a meeting held in violation of the Open Meetings Act. In this appeal, Revelle seeks inter alia an award of back pay and attorney's fees from the LAB's chair, Wilda Marston, Mayor Fink, the Municipality of Anchorage, and the LAB (collectively, "the Municipality"). II. FACTS Keith Revelle was the Head Librarian of the Anchorage Municipal Library from 1977 to early 1988. From 1986 to 1988 his position has carried the status of a department head, making Revelle a municipal executive. All executive employees of the Municipality serve at the pleasure of the Mayor. Under the Municipality's personnel rules, evaluations of Revelle's performance were the responsibility of the Mayor and the Municipal Manager. The Municipal Manager was Re-velle's direct supervisor. As part of his duties Revelle served as the executive secretary and technical advisor for the LAB, and attended all LAB meetings. Anchorage Municipal Code (AMC) 4.60.040(A). From 1983 through 1987, the LAB periodically met to evaluate Revelle's performance as Head Librarian. These meetings were not part of the regular meeting schedule, were not open to the public, took place without notice to the public or Revelle, and occurred outside of Revelle's presence. The parties dispute whether the LAB's authorized functions included evaluation of the Municipal Librarian's performance. However, in his affidavit, Mayor Fink acknowledged that "it is not the duty and responsibility of the Library Advisory Board to provide evaluations of library or administration personnel and [that] the Library Advisory Board is not in the personnel chain." Furthermore, the Municipality expressly acknowledged that evaluating the Municipal Librarian was an act outside of the LAB's regular duties. In 1985, the chair of the LAB, Wilda Mar-ston, forwarded a negative evaluation of Re-velle's performance to the Municipal Manag er, Bob Smith. Smith did not consider the 1985 evaluation appropriate and told Revelle this. Smith also discussed the matter with then Mayor Tony Knowles, who agreed with his analysis. When Marston herself approached Mayor Knowles, the Mayor told her that the LAB had only an advisory role and that her view of Revelle's performance did not correspond to others' evaluations of Revelle. In November 1987, the LAB held a meeting at Marston's home. The LAB gave neither the public nor Revelle notice of the meeting; thus Revelle was not present. The LAB decided to recommend Revelle's termination to then Mayor-elect Fink. Based on the discussions at this meeting, Marston drafted a letter to the Mayor-elect and had the other LAB members review and sign it. Attached to the letter was the LAB's negative evaluation of Revelle's library management skills. Upon receiving the evaluation, Mayor-elect Fink contacted Revelle and asked if he had seen the LAB evaluation. Thinking that the Mayor-elect was referring to an earlier 1985 evaluation, Revelle answered that he knew about an evaluation but had not seen it. The Mayor-elect asked Revelle to review the evaluation since it was negative, and said that he would get him a copy. A member of the Mayor-elect's transition team, Bert Hall, subsequently contacted Revelle and offered him a copy of the evaluation. Revelle indicated that such an evaluation was not a proper function of the LAB, and that Hall should examine the evaluations of Revelle's immediate supervisors. In January 1988, Mayor Fink terminated Revelle's employment as head of the Municipal Library Department. In deciding to discharge Revelle, Mayor Fink relied solely upon the LAB's 1987 evaluation. Revelle contends, and the Municipality does not dispute, that he did not learn of the 1987 evaluation and letter until shortly after his termination. III. PROCEDURAL HISTORY In August 1988, Revelle filed suit against the Municipality. In his initial complaint, he alleged that the Municipality had violated the Open Meetings Act, AS 44.62.310(a), and had deprived him of due process. He sought, amongst other relief, a judgment voiding his termination and awarding him back pay and benefits. Revelle subsequently filed a motion for summary judgment. The superior court decided Revelle's motion for summary judgment, determining that LAB meetings were subject to the Open Meetings Act, and that the November 1987 LAB meeting in Marston's home violated the Act's provisions. The superior court also concluded that invalidation of Mayor Fink's termination decision was "necessary to foster a full and fair reconsideration" of the termination decision. Accordingly, the superior court ordered the reinstatement of Revelle for a "cooling-off period" of 120 days, in order to permit "adequate time for a full and fair reevaluation of Mr. Revelle's job qualifications and past performance.... " Mayor Fink was explicitly prohibited from relying on the LAB's 1987 evaluation, or on materials derived from it, during reconsideration. However, Revelle was denied an award of back pay on the grounds that such an award would not serve the public interest. At the end of the 120 day period, Mayor Fink again terminated Revelle's employment as Head Librarian. He cited a number of reasons unconnected to the LAB's evaluation for reaching this decision. Revelle did not challenge his second termination, and thus it is not an issue in this appeal. Thereafter, the Municipality moved for summary judgment on the remainder of Re-velle's claims. Revelle responded with a mo tion to amend his complaint, adding inter alia a claim against Marston and the LAB for tortious interference with contract, and a claim against all the defendants — Mayor Fink, the Municipality, Marston, and the LAB — for breach of the implied covenant of good faith and fair dealing, and for infliction of emotional distress. In addition, Revelle filed a cross-motion for summary judgment. The superior court granted Revelle's motion to amend. The Municipality was subsequently granted summary judgment on Re-velle's claims for due process violations and breach of the implied covenant of good faith and fair dealing. The superior court did not address the claim for interference with contract, because it had not yet been briefed. Thereafter, Revelle moved to set the case for trial, and in May 1992 the superior court scheduled the trial for late September of the same year. In June 1992, pursuant to a stipulation by the parties, trial was rescheduled for late November 1992. In September 1992, Revelle moved to amend his complaint, dropping the tortious interference with contract claim. The Municipality did not oppose this motion, except with regard to Revelle's contention that the Municipality would suffer no prejudice from the amendment. The Municipality requested an award of costs and attorney's fees as reimbursement for the expense of trial preparation and as a condition for granting the amendment. The superior court granted the motion to amend, but declined to rule upon the costs and attorney's fees issue. Revelle then moved for final judgment and sought a determination of prevailing party status for the purpose of an award of attorney's fees under Alaska Civil Rule 82. The superior court issued its final judgment in November 1992, holding that each party prevailed on significant issues in the case and ordering each party to bear its own costs and attorney's fees. This appeal followed. Revelle appeals from the superior court's denial of his claim for back pay and benefits as a remedy for the Municipality's violations of the Open Meetings Act. He also appeals from the grant of summary judgment to the Municipality on his claims for due process violations and breach of the implied covenant of good faith and fair dealing. Finally, he appeals from the superior court's decision that he was not a prevailing party and thus not entitled to an award of costs and attorney's fees. On cross-appeal, the Municipality claims that the superior court should have awarded the Municipality attorney's fees and costs for trial preparation on the tortious interference with contract claim. IV. DISCUSSION A. The Superior Court's Denial of Back Pay and Benefits 1. Standard of Review for the Superior Court's Application of the ACCFT Test Action taken contrary to the Open Meetings Act is void. AS 44.62.310(f). When a void decision is remanded by a court to the transgressing governmental body for reconsideration, "approximation of the status quo at the time of the original decision is desirable." Alaska Community Colleges' Fed'n of Teachers, Local No. v. University of Alaska, 677 P.2d 886, 890 (Alaska 1984) [hereinafter ACCFT], Nonetheless, mechanistic application of such a rule is not always in the public interest. See id. at 891. The void action in this case was the LAB's recommendation that Revelle be fired. The Mayor's firing of Revelle was not itself in conflict with the Open Meetings Act. The Mayor had the authority to fire Revelle for virtually any reason or no reason. Revelle's firing was thus invalidated by the superior court not because the Mayor lacked authority to fire him, but because the Mayor had relied on the LAB's void evaluation in firing him. Therefore what was needed was a remedy which would purge the void evaluation of the LAB from the decision-making process concerning whether to fire or retain Revelle. This court has established a three-step analysis for determining the appropriate remedy for a decision made in violation of the Open Meetings Act. First, the transgressing governmental body must show that a subsequent ratification of the original decision involved a substantial reconsideration of that decision. See id. at 891, 893. If full and fair reconsideration did not occur, then it must be determined whether reconsideration is possible without invalidating the earlier flawed decision. See id. at 891-92. If reconsideration is not possible without invalidating the decision, then the court must conduct a balancing test to determine whether invalidation is in the public interest. Id. at 892. "In deciding the public interest issue, the court should weigh the 'remedial benefits to be gained in light of the goals of the [Open Meetings Act] against the prejudice likely to accrue to the public.' " Brookwood Area Homeowners Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1325 (Alaska 1985) (quoting ACCFT, 677 P.2d at 893). In the present case, the superior court held that the LAB drafted its 1987 evaluation in violation of the Open Meetings Act. The superior court also determined that "invalidation of the decision to terminate Mr. Revelle is necessary to foster a full and fair reconsideration of that decision." These rulings of the superior court are not at issue in this appeal. Rather, at issue in this appeal is whether the superior court properly balanced the remedial aspects of the Open Meetings Act against the prejudice that the public would be likely to suffer in determining whether to award Revelle back pay and benefits. Implicit in the superior court's findings is a determination that the remedial benefits of Revelle's reinstatement, in terms of ensuring proper compliance with the Open Meetings Act, outweighed the prejudice to the public interest. Neither party challenged this finding in the superior court. Rather, on appeal Revelle challenges the superior court's apparent assumption that reinstatement should encompass merely a return of Revelle to his position as head librarian for the Municipality and that an award of back pay and benefits was not required. The superior court essentially separated Revelle's termination into two components: the removal of Revelle from his post, and the cessation of any remuneration to Revelle during the period between his original termination and his reinstatement. The superior court applied the ACCFT balancing test separately to each component. The parties disagree on the proper standard of review for the superior court's application of the ACCFT test. Revelle argues that the superior court's denial of back pay and benefits raises a question of law, which this court reviews de novo. The Municipality argues that this court should review the superior court's application of the ACCFT balancing test under the abuse of discretion standard. ACCFT, 671 P.2d at 893. We conclude that whether Revelle was entitled to back pay and benefits depends upon the application of the ACCFT balancing test and thus review Revelle's claim for back pay and benefits under the abuse of discretion standard. Id. at 893. 2. Application of ACCFT Balancing Test In rejecting Revelle's claim for back pay and benefits, the superior court interpreted the Open Meetings Act as having been enacted for the public good rather than providing an avenue for obtaining private relief: In this ease, the facts militating against invalidation of Mayor Fink's decision involve the costs to the Municipality of awarding in excess of $86,000 in back pay to Mr. Revelle. This award could have a profound impact on the library's budget, possibly resulting in an inability to open a new branch library in the Northway Mall or to purchase books or provide services in other branches. In the alternative, an up ward adjustment of the tax rate for the Municipality would result. An award of back pay to Mr. Revelle is not necessary to promote the Mayor's full and fair reconsideration of the decision whether to terminate or retain Mr. Revelle as Municipal Librarian. Furthermore, remedial actions are to be assessed in light of the goals of the Open Meetings Act, in this case goals of allowing public participation and input in the operation of government. These public goals are not addressed by personally compensating Mr. Revelle for his lost wages. Mr. Revelle may pursue these claims within the context of his other causes of action, including his action for wrongful termination. Revelle argues that because a person may request a public discussion of subjects that might harm his or her reputation or character, see AS 44.62.310(c), the Open Meetings Act protects individuals as well as the public. The Open Meetings Act protects and advances the public's right to remain informed. ACCFT, 677 P.2d at 891. "It is believed that public exposure deters official misconduct, makes government more responsive to its constituency, allows for greater public provision of information to the decision-maker, creates greater public acceptance of government action, and promotes accurate reporting of governmental processes." Id. (citations omitted). Thus, in assessing the remedial benefits to be gained in light of the Act's goals, the superior court was correct in considering the Act's broad purpose of encouraging "public participation and input in the operation of government." However, a legitimate but more specific purpose not considered by the superior court is that of maximizing informed and principled decision-making in individual cases. Those who will be affected by a public body's decision have the right to appear and be heard in a public forum. We have previously considered the remedial purposes of the Act from the individual's perspective: Ideally the plaintiff is entitled to be placed in the position he would have been in had the violation never occurred. That position is not one where the adverse decision is never made. Instead it is one where the decision, adverse or not, is taken in conformity with the sunshine laws. Id. at n. 10. Moreover, this court has acknowledged that the Open Meetings Act facilitates informed decision-making. For example, we have stated that the Act, "by ensuring that issues are decided publicly, does attempt to ensure that better substantive decisions are made through public scrutiny and adequate information." Id. And we have noted that the Act "allows for greater public provision of information to the decision-maker." Id. Thus, we conclude that the superior court should have considered the purpose of maximizing informed and principled decision-making in individual cases in fashioning its remedial decision in response to the LAB's violation of the Act. The superior court also did not, at least explicitly, consider the Act's remedial goal of deterrence. Placing governmental bodies on notice that courts will strongly enforce the Open Meetings Act serves the Act's remedial goal of deterrence. See Brookwood Area Homeowners Ass'n, 702 P.2d at 1326; cf. Puglisi v. School Comm. of Whitman, 11 Mass.App.Ct. 142, 414 N.E.2d 613, 613-15 & n. 6 (1981) (upholding an award of back pay in favor of school principal discharged in violation of state open meetings act for the period from the date of the illegal meeting to the date of the lower court's judgment on the grounds that the award "fulfill[ed] the legislative purpose of exacting a penalty for violations of the open meeting law"). Thus, in assessing the remedial benefits to be gained in light of the Act's goals, the superior court should have considered the goals of maximizing informed and principled decision-making in individual cases and deterring future violations, as well as the goal of encouraging "public participation and input in the operation of government." The superior court should have weighed these benefits against the prejudice likely to accrue to the public if Revelle is awarded back pay and benefits. Ideally, the goal of the Open Meetings Act is to place Revelle in the position he would have been in had the violation never occurred. ACCFT, 677 P.2d at 891 n. 10. It is relevant to inquire whether there is a nexus between the LAB's violation and Revelle's termination. For instance, if the LAB's meeting had been public and Revelle had been allowed to present his side of the story in a public forum, he might have altered the LAB's negative evaluation and thereby avoided being fired. On remand the superior court could find there is a reasonable probability that Revelle's presence would have resulted in a different recommendation from the LAB, and that there is a nexus between the violation and the termination. In the event such a finding is made, the superior court could then further determine that an award of back pay and benefits is appropriate. If, on the other hand, Revelle would have been dismissed even if the Open Meetings Act had been observed, the superior court could conclude that there is an absence of a nexus between the LAB's violation and Revelle's termination, and that back pay and benefits are therefore not warranted. Even if the superior court were to reach the latter conclusion, it could still determine that consideration of the remedial goal of deterrence warrants awarding Revelle at least his costs and the full reasonable attorney's fees he incurred as a result of his attempts to remedy the LAB's violation of the Act. Because it does not appear that the superior court in making its discretionary decision concerning the remedy of back pay considered the Open Meetings Act's goals of informed and principled decision-making and the question of the need to deter Open Meetings Act violations, this aspect of the case must be remanded for such consideration. B. Revelle's Due Process Claims Revelle contends that he had a protected interest in his employment and thus a constitutional right to procedural due process. In particular, Revelle contends that the LAB's negative evaluation damaged his reputation in the community, depriving him of a constitutionally protected liberty interest, and that the Municipality should have allowed him the opportunity to address the LAB's charges at a pre-termination hearing. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the United States Supreme Court addressed whether termination of at-will employment affects a constitutionally protected liberty interest. In Roth, a university had hired a nontenured professor for a fixed term. Id. at 566, 92 S.Ct. at 2703. At the end of the term, the university decided not to rehire him. Id. The Court held that the Fourteenth Amendment's Due Process Clause did not give him the right to a hearing, because he did not show that the university had deprived him of a liberty interest protected under the Constitution: The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For "[wjhere a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." . Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. Id. at 573, 92 S.Ct. at 2707 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971)); see also Shutting v. Dillingham City School Dist., 617 P.2d 9, 12 (Alaska 1980). The Ninth Circuit has stated that in order to infringe upon an employee's liberty interest, an employer's negative remarks must belittle the employee's "worth and dignity as an individual," so as to have "severe repercussions outside of professional life." Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 (9th Cir.1976). For example, remarks that impose a stigma of moral turpitude, such as charges of immorality or dishonesty, intrude upon the liberty interest. See Roth, 408 U.S. at 573, 92 S.Ct. at 2707; Raposa v. Meade School Dist. 46-1, 790 F.2d 1349, 1354 (8th Cir.1986); Burk v. Unified School Dist. No. 329, 646 F.Supp. 1557, 1567 (D.Kan.1986). Negative remarks about an employee's job performance primarily affect the employee's professional life alone, and generally are not considered so stigmatizing as to harm reputation or foreclose future employment. See Raposa, 790 F.2d at 1354; Stretten, 537 F.2d at 366; Burk, 646 F.Supp. at 1566-67. In Revelle's case, the superior court determined that the LAB evaluation was simply a negative job evaluation, which did not infringe upon a liberty interest because it did not impugn Revelle's honesty, integrity, or morality. The superior court was concerned that a contrary finding would put a liberty interest at stake whenever the Municipality based its dismissal of an at-will employee upon a negative job evaluation. We agree. Because the LAB's negative job evaluation did not infringe upon a constitutionally protected liberty interest, Revelle had no right to a pre-termination hearing. C. Breach of the Implied Covenant of Good Faith and Fair Dealing Revelle further contends that the superior court erred in granting the Municipality summary judgment on his claim for breach of the implied covenant of good faith and fair dealing. An implied covenant of good faith and fair dealing exists in all at-will employment contracts. Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1223 (Alaska 1992) {Luedtke II); Mitford v. de Lasala, 666 P.2d 1000, 1006-07 (Alaska 1983). Although Revelle's amended pleadings refer to all the defendants as parties to his claim for breach of the implied covenant, his arguments before the superior court discussed only Marston and the LAB's bad faith in making the evaluation, and did not discuss whether Mayor Fink or the Municipality violated the covenant by going outside normal procedures for evaluating personnel. Essen tially, he tried to attribute the LAB's alleged bad faith to the Municipality. The superior court rejected this contention. Granting summary judgment in the Municipality's favor, the court concluded that Revelle "claim[ed] no independent breach of the implied covenant of good faith and fair dealing by the Municipality or Mayor Fink," and that Marston and the LAB had no contractual relationship with Revelle. The superior court also concluded that Revelle's claim was "based exclusively on the violations of the Open Meetings Act by the LAB." The superior court stated in full: Revelle has alleged that the defendants violated the implied covenant of good faith and fair dealing. This claim is based exclusively on the violations of the Open Meetings Act by the LAB. The LAB, however, had no contractual relationship with Revelle; Revelle's contract was with the Municipality of Anchorage and it is Mayor Fink who terminated that contract of employment. The LAB had neither the authority to hire nor fire the municipal librarian, and, in fact, it is unclear that the LAB even had the authority to make a recommendation to Mayor Fink regarding Mr. Revelle's retention in the new administration. Because the LAB and Wilda Mar-ston had no contract with Mr. Revelle, they cannot be found to have violated the implied covenant of good faith and fair dealing. See, e.g., O.K Lumber v. Providence Washington Ins., 759 P.2d 523 (Alaska 1988). Since Revelle claims no independent breach of the implied covenant of good faith and fair dealing by the Municipality or Mayor Fink, there is no factual issue raised in this regard and the Municipality's request for summary judgment on this issue is GRANTED. On appeal, Revelle advances two new arguments. First, Revelle asserts that his case is one in which the Municipality deviated from standard procedures for termination. A failure to follow established procedures for termination may indicate a breach of the implied covenant of good faith and fair dealing. See ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1155 (Alaska 1988). Second, Revelle argues that Mayor Fink's decision was objectively unreasonable because it relied on the recommendation of the LAB, a body not authorized to evaluate the Municipal Librarian. An employer may not only breach the covenant of good faith and fair dealing through improper motive or intent but may also commit an objective breach of the covenant, by failing to act "in a manner which a reasonable person would regard as fair." Luedtke II, 834 P.2d at 1224. We decline to address these new theories raised for the first time in this appeal since they were not advanced before the superior court. Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991); Tolstrup v. Miller, 726 P.2d 1304, 1307 n. 7 (Alaska 1986). As noted above the superior court disposed of the entire good faith and fair dealing issue on the ground that the only argument Re-velle made was that the LAB's Open Meetings Act violation itself constituted a breach of the implied covenant of good faith and fair dealing. We have concluded that the superi- or court correctly rejected this theory on the grounds that Revelle did not claim any independent breach of the implied covenant of good faith and fair dealing by the Municipality or Mayor Fink, and that neither Marston nor the LAB had a contractual relationship with Revelle. D. Attorney's Fees Because we reverse the superior court's application of the ACCFT balancing test, we remand Revelle's claim for attorney's fees to the superior court for redetermination in light of this opinion. Because Revelle amended his complaint to delete claims after the Municipality had incurred significant costs preparing to try them, the Municipality argues on cross-appeal that it suffered prejudice from the amendment. The Municipality contends that consequently it should receive an award of costs and attorney's fees. The superior court made no express findings on the Municipality's claim of prejudice. When a party requests the leave of the court to amend a pleading, the court is not required to make findings as to asserted claims of prejudice from the opposing side. See Alaska Civil Rule 15. The sole authority on which the Municipality relies, Adkins v. International Union of Electrical, Radio & Machine Workers, 769 F.2d 330 (6th Cir. 1985), upheld an order to rectify the prejudice the other side suffered due to unnecessary litigation. Id. at 334. Adkins does not require a court to make express findings on any issues of prejudice that a party may raise. Referring to the originally scheduled trial date of September 28, the Municipality also contends that Revelle filed his September 1992 motion to amend his complaint "[j]ust prior to trial." However, soon after setting the original trial date, the superior court postponed the start of trial to late November, pursuant to a stipulation by the parties. Thus, as Revelle correctly notes, he filed his motion to amend his complaint roughly 2⅜ months before the start of trial. Contrary to the Municipality's contention, Revelle did not amend his complaint on the eve of trial. Civil Rule 15(a) gives the superior court broad discretion to allow amendment of pleadings. Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). Given the substantial amount of time remaining before trial, we hold that the superior court did not abuse its discretion either by granting Revelle leave to amend his complaint or by implicitly rejecting the Municipality's claim of prejudice and request for attorney's fees and costs. V. CONCLUSION We conclude that the superior court failed to consider all of the Act's goals in applying the ACCFT balancing test to determine whether Revelle should be awarded back pay and benefits. We therefore REVERSE the superior court's denial of back pay and benefits to Revelle. On remand, the appropriate remedy is committed to the sound discretion of the superior court. In assessing the remedial benefits to be gained in light of the Act's goals, the superior court should consider the goals of maximizing informed and principled decision-making in individual eases and deterring future violations, as well as the goal of encouraging "public participation and input in the operation of government." The superior court should weigh these benefits against the prejudice likely to accrue to the public if Revelle is awarded back pay and benefits. Ordinarily, there must be a nexus between the violation and the termination. However, the superior court could conclude that the LAB's conduct was particularly egregious and that the goal of deterring such conduct in the future is paramount. In such a case, the superior court could conclude that, even in the absence of a nexus, Revelle is entitled to at least his costs and full reasonable attorney's fees. We further hold that the superior court correctly determined that Revelle's initial termination did not infringe upon his constitutional right to due process. In addition, we affirm the superior court's grant of summary judgment in the Municipality's favor on Re-velle's claim for breach of the implied covenant of good faith and fair dealing. We also affirm the superior court's order allowing Revelle to amend his complaint a second time, and thus conclude that the Municipality's cross-appeal lacks merit. We remand Revelle's claim for attorney's fees for rede-termination in light of our holding regarding the back pay issue. AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. MOORE, C.J., not participating. . Article V, § 5.02(a) of the Home Rule Charter for the Municipality of Anchorage states: The Mayor shall appoint all heads of municipal departments, subject to confirmation by the Assembly, on the basis of professional qualifications. Persons appointed by the Mayor serve at the pleasure of the Mayor. . One of the LAB's functions was to "[m]ake recommendations to the administration and Assembly for the adoption, change, repeal or alteration of rules, regulations, restrictions on library services, and all other matters directly or indirectly affecting the municipal library program." AMC 4.60.040(B). The Municipality cursorily argues that this provision permitted the LAB to evaluate Revelle's performance. . Alaska Statute 44.62.310(a) states in part: All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions, or organizations, advisory or otherwise, of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except as otherwise provided by this section. . In December 1990, the Municipality sought summary judgment on the interference with contract claims, as well as on the emotional distress claims made in the amended complaint. In September 1991, the Municipality obtained summary judgment on the emotional distress claims, but not on the tortious interference claim. . The Alaska Legislature recently repealed and reenacted this section changing the term "void" to "voidable." Ch. 69, § 7, SLA 1994. However, only the previous version of the Act is relevant to this appeal. . Revelle characterizes the superior court's action as applying the same step twice: first in determining whether to invalidate Mayor Fink's termination, and second in deciding what type of relief to grant. . Alaska Statute 44.62.310(c) states in part: The following excepted subjects may be discussed in an executive session: (2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion.... . The Municipality argues in part that Revelle's situation is similar to University of Alaska v. Geistauts, 666 P.2d 424 (Alaska 1983), in which we ordered the reinstatement of a professor, to whom a university committee had denied tenure at a meeting held in violation of the Open Meetings Act. In that case, we upheld the superior court's denial of employee benefits and retirement service credits pending reconsideration. See id. at 430-31 & n. 12. Revelle replies that the superior court additionally upheld an award of monetary damages to the professor, and that this award was not at issue in Geistauts. The superior court's final judgment in Geistauts indicates that as to one of the counts of the professor's action, the parties stipulated to a damage award of $10,000 and costs and attorney's fees of $5,000. The judgment does not state whether this award represented back pay, represented a remedy for Open Meetings Act violations as opposed to another claim, or affected the superior court's analysis on the issue of the other benefits. Given its lack of analysis of the benefits and back pay issue, we conclude that Geistauts is not dispositive of this back pay issue. . We note a recent decision involving similar issues in which a Texas appellate court upheld an award of back pay and benefits to an employee who was initially terminated in violation of the state's open meetings law. Ferris v. Texas Bd. of Chiropractic Examiners, 808 S.W.2d 514 (Tex.App.1991). The employee argued that the Board's termination attempts at unlawfully held meetings were void as a matter of law, and that she was therefore entitled to an injunction voiding the termination, reinstating her to her former position, and awarding her back pay for the same time period. Id. at 516. The court rejected the Board's arguments that Ferris' only remedy under the act was the right to attend a properly convened meeting and held that Ferris was entitled to an award of back pay and benefits. Id. at 516, 517, 519. The fact that Ferris was employed on an at-will basis did not affect the court's reasoning. Id. at 518-19. . This in no' way changes our prior statement that "open meetings statutes were not primarily intended as vehicles for individuals displeased with governmental action to obtain reversals of substantive decisions." ACCFT, 677 P.2d at 891. . The case on which the superior court relied to deny Revelle back pay, Jarussi v. Board of Trustees of School District No. 28, 204 Mont. 131, 664 P.2d 316 (1983), is inapposite. Jarussi does not address whether an employee may obtain a remedy of back pay or benefits when a public employer's termination decision violates an open meetings statute. The employee in Jarussi sought damages for his wrongful termination claim, not for his claim as to the violations of the Open Meetings Act. See id. at 318. Citing Sanna v. Lindenhurst Board of Education, 85 A.D.2d 157, 447 N.Y.S.2d 733 (1982), the Municipality argues that the LAB's violation of the Open Meetings Act should not be "a wagon to which Revelle is allowed to hitch his wrongful termination claims." Sanna is also not on point. In Sanna, a school board violated New York's open meetings statute when terminating a probationary teacher's employment. Id. at 734. The court held that reinstatement constituted an improper judgment on the merits, and that reinstatement was not a remedy for procedural defects contemplated under New York's open meetings statute. See id. at 735-36. In other words, the Sanna court decided whether to void the termination decision itself, not whether a void termination decision called for an award of back pay. Furthermore, the Sanna court recognized the concern that merely "directing the board to make a redetermination of the matter at its next meeting . would . be virtually cost free and therefore essentially no deterrence at all against future violations of the open meeting or open vote statutes." Id. The New York court in fact imposed a cost on the school board, allowing the dismissed teacher an award of attorney's fees. Id. . Under the United States Constitution, "No state shall . deprive any person of life, liberty, or property, without due process of law...." U.S. Const, amend. XIV, § 1. The Alaska Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law." Alaska Const, art. I, § 7. . Whether Revelle has a liberty interest in his employment for purposes of due process presents an issue of constitutional interpretation. Issues of constitutional interpretation are questions of law, which this court reviews de novo. Carvalho v. Carvalho, 838 P.2d 259, 261 n. 4 (Alaska 1992). . Revelle contends that he also possessed a constitutionally protected property interest in his employment, even though he was employed in an at-will position. At-will employment does not create a constitutionally protected property interest. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska 1981); see also Bishop v. Wood, 426 U.S. 341, 345-46 & n. 8, 96 S.Ct. 2074, 2077-78 & n. 8, 48 L.Ed.2d 684 (1976). Nonetheless, we have held that a provision in an at-will employment contract that required 30 days notice of termination created a property interest in 30 days of employment, which the employer improperly denied without a pre-termi-nation hearing. Breeden, 628 P.2d at 926-27. Relying on Breeden, Revelle argues that the Open Meetings Act gives an at-will employee a property interest in his or her job, by giving the employee a right to be present at any meeting where his or her reputation is at issue, and a right to request that the meeting be public. See AS 44.62.310(c)(2). This contention is without merit. Nothing in the Open Meetings Act indicates a legislative intent to create either an implied contract of employment or an expectation of continued employment for at-will positions. . The superior court held Roth was inapposite to Revelle's case. In part the superior court reasoned that the LAB's evaluation "is essentially a negative job evaluation which does not impugn Revelle's honesty, integrity, or morality," and that, [h]ere, the termination, although based on a negative job evaluation, was communicated in a letter to Revelle which did not discuss the reasons and raised no public stigmatic charges to which Revelle had the right to respond in order to clear his name. The public release of the evaluation, after the termination of Revelle and over the Municipality's objection, does not create a liberty interest. . Revelle relies in part on Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973), for his claim that his termination infringed upon a constitutional liberty interest. In Nichols, we held that "[t]he stigma which attaches to a discharge for incompetence is sufficiently injurious" to demand the protection of due process. Id. at 1364 & n. 9. However, Nichols involved school teachers that could only be fired for incompetence under state law; thus Nichols did not involve parties in an at-will employment relationship. Id. at 1360-61. This case is, therefore, not helpful to Revelle's claim. . Citing Breeden, 628 P.2d at 926, the superior court stated: If this evaluation were held to be the type of stigmatic charge discussed in Roth, then the due process liberty interest would be at stake every time the Municipality terminated an at-will employee based on job performance resulting in a negative employment evaluation. Clearly, this result would conflict with the law regarding discharge of an at-will employee. . This court reviews grants of summary judgment to ascertain "whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment" as a matter of law. Zeilinger v. SOHIO Alaska Petroleum Co., 823 P.2d 653, 656 n. 6 (Alaska 1992). This court makes all reasonable inferences of fact in favor of the non-movant. Id. . The superior court stated that it would address "[t]he issue of who is the prevailing party and attorneys fees" through a separate motion and determination. Whether the superior court intended to address the Municipality's prejudice claims at a future time is unclear. In its arguments before the superior court on Revelle's motion to amend, the Municipality briefly argued that the court should grant the Municipality prevailing party status on the tortious interference claim, and Revelle responded to that contention. The superior court may well have been referring to these arguments. . Civil Rule 15(a) states in part: A party may amend his pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

12345648

Bill YANKEE, Appellant, v. CITY AND BOROUGH OF JUNEAU, Chris Gilberto, and Ann Gilberto, Appellees

Yankee v. City of Juneau

2017-10-20

Supreme Court No. S-16098

460

467

407 P.3d 460

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.

Bill YANKEE, Appellant, v. CITY AND BOROUGH OF JUNEAU, Chris Gilberto, and Ann Gilberto, Appellees.

Bill YANKEE, Appellant, v. CITY AND BOROUGH OF JUNEAU, Chris Gilberto, and Ann Gilberto, Appellees. Supreme Court No. S-16098 Supreme Court of Alaska. October 20, 2017 Robert S. Spitzfaden, Gruening & Spitzfa-den, APC, Juneau, for Appellant. Robert H. Palmer, III, Assistant Municipal Attorney, and Amy' Gurton Mead, Municipal Attorney, Juneau, for Appellee City and Borough of Juneau. No appearance by Appellees Chris Gilberto and Ann Gilberto. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

4525

28573

OPINION MAASSEN, Justice. I. INTRODUCTION A landowner contends that his neighbors' fence violates two restrictive plat- notes. The neighboring properties are.in two different subdivisions, and the landowner is therefore not bound by the same restrictive plat notes that he seeks to enforce against his neighbors. The landowner complained about the fence to the Director of Juneau's Community Development Department, but the Director responded that the fence was allowed, citing longstanding policy. The landowner appealed to the Planning Commission, which affirmed the Director's decision. The landowner next appealed to the Juneau Assembly, which rejected his appeal for lack of standing. The landowner appealed this decision' to the superior court, which affirmed the Assembly's reliance on standing as grounds to reject the appeal. The landowner appeals to us, We conclude that the Director's decision was an appropriate exercise of his enforcement discretion, not ordinarily'subject to judicial review. On that alternative ground we affirm the superior court's dismissal of the appeal. We decline to address the standing issue on which the Assembly and the superi- or eourt based their decisions. II. FACTS AND PROCEEDINGS A. Facts An undeveloped greenbelt buffer runs between Bill Yankee's property and the back of Chris and Ann Gilbertos'-. The two properties are' in different subdivisions and therefore subject to .different covenants: Yankee's property is in the Nunatak Terrace Subdivision whereas the Gilbertos' is in the Montana Creek Subdivision. The Gilbertos built a fence along their'side of the greenbelt buffer. According to the Gilbertos, they checked with the Community Development .Department (ODD) of the City and .Borough of Juneau (CBJ) before building the fence and were repeatedly assured that it was allowed. But Yankee — concerned that the fence interfered with the movement of ducks through the greenbelt — asserted that it violated two plat notes on the recorded plat of the Montana Creek Subdivision applicable to its southern boundary line, where it adjoins Nunatak Terrace and another subdivision. One of the plat notes requires a "30 [foot] 'no-build' structure setback"; the other requires "no disturbance to [a] 20 [foot] natural green belt & visual buffer easement." B. Proceedings Yankee first brought his complaint about the Gilbertos' fence to the CDD. The Director's response, in the form of a four-page letter addressed to Yankee, began by stating that its purpose was "to clarify the [CDD] policy regarding fences and to formally notify you of my decision as CDD Director regarding this ease." What followed was a description of the subdivisions' development and an explanation of CBJ's fence policy going back "to at least 1999." The Director explained that the Montana Creek plat notes were primarily intended to "ensure that existing vegetation would be preserved" in the greenbelt buffer area so that neighboring properties would be shielded from the new and denser Montana Creek subdivision; he explained that fences, with some limitations, were actually consistent with those purposes. The Director's decision concluded: The fence in this particular ease was constructed in such a way as to be consistent with the standing CDD policy and appears to be of minimal visual impact since it is wire and less than five feet tall. The wire fence allows for the vegetative buffer to show through unlike other fences that might allow for greater privacy. It appears reasonable that the property owner would want to denote where his property line is and where the neighboring properties begin and to do this [in] a manner that does not impair the neighbor's enjoyment of the greenbelt, since the same right is afforded to the non-Montana Creek subdivision property owner. Yankee appealed the Director's decision to the CBJ Planning Commission. The Commission rejected his appeal on its merits, finding that the plat notes were ambiguous and that Yankee failed to demonstrate that the fence was prohibited. Yankee next appealed to the CBJ Assembly, which also rejected his appeal, though not on the merits. The Assembly relied instead on a memorandum from the CBJ Law Department concluding that Yankee lacked standing to enforce the plat notes because he did not own property in Montana Creek Subdivision. Yankee then appealed to the superior court, which affirmed the Assembly's decision that he lacked standing. Yankee appealed to this court. III. STANDARD OF REVIEW "When the superior court acts as an intermediate court of appeals in an administrative matter, we independently review the merits of the agency's decision." Because the scope of appellate jurisdiction "does not 'implicate special agency expertise or the determination of fundamental policies within the scope of the agency's statutory function,' we will substitute our independent judgment for that of the agency." Although courts generally refrain from reviewing an executive agency's exercise of discretionary enforcement authority, we have observed that we may review such an exercise to insure its "conformity with law and that it is not so capricious or arbitrary as to offend due process." IV. DISCUSSION Yankee's opening brief in this appeal focused on the issue of standing — the sole ground on which the Assembly and the superior court declined to hear the merits of his appeal from the Director's decision. CBJ, in its appellee's brief, raised the issue of subject matter jurisdiction; it characterized the Director's decision as either (1) an attempt to adjudicate a private dispute, for which the CDD lacked jurisdiction; (2) a "policy advice letter" which the CDD had authority to issue but from which there was no right of appellate review; or (3) a discretionary enforcement decision which the CDD had authority to make but from which, again, there was no right of appellate review. In his reply brief Yankee pushed back against the characterization of the Director's decision as an "advisory opinion" (or "advice letter"), contending that although the decision "clarifie[d] the CDD fence policy," in doing so it resolved Yankee's complaint "pursuant to the Director's enforcement authority." We agree with CBJ that the dispositive issue is one of reviewability. We hold that the Director's decision was an appropriate exercise of his enforcement discretion that we should not review. In reaching this holding we do not find it necessary to consider whether the decision was properly appealable within the CBJ administrative hierarchy— from the CDD to the Planning Commission to the Assembly — nor do we decide the standing issue that the superior court found dispositive. We focus only on whether a discretionary enforcement decision, with whatever layers of review the executive has given it, should also be subject to our review. A. The Director Has Enforcement Authority Over Matters Relevant To Yankee's Complaint. The Director's consideration of the case was apparently prompted first by communications from the Gilbertos, who, after receiving complaints from Yankee, sought reassurances from the CDD that their fence was allowed. The CDD then heard from Yankee himself by telephone. According to a CDD planner's record of the conversation, Yankee relied on the Montana Creek plat notes to support his position that the fence should "come down ideally" and "[i]f that can't be done, then he'd like holes cut into the fence so that nesting ducks are able to travel back and forth over the ponds between the two lots." In the context of the CDD's authority, as explained below, we view Yankee's request as one for enforcement: a request that the CDD, by whatever means, require the Gil-bertos to remove or significantly alter their fence. To appropriately categorize the Director's response, we must first review the sorts of decisions the Director is authorized to make. The City and Borough of Juneau Code § 49.10.500 -authorizes the Director "to cany out all of the duties as set forth in [title 49] and title 19." We find no relevant authority in title 19 ("Building Regulations") and .therefore look to title 49. As relevant here, that title gives the Director authority in three main areas: (1) permitting; (2) approval of "minor subdivisions"- and zoning districts; and (3) enforcement. It is evident that the Director's decision on Yankee's complaint was not grounded in his permitting authority. Although CBJ § 49.16.310 grants such authority for individual "minor developments," fences under six feet, like the Gilbertos' five-foot fence, do not require a permit under ODD policy. Nor did Yankee's complaint implicate the Director's approval authority for "minor subdivisions" and zoning districts. We conclude that it was the Director's enforcement authority that allowed him 'to consider and respond to Yankee's complaint. As Yankee asserts, the Director's enforcement authority extends to potential plat note violations, for which the law provides a variety of enforcement tools. The Director thus had the authority to hear and respond to Yankee's complaint. Indeed, Yankee agrees that the Director's decision of his complaint was an exercise of enforcement authority, 'though he disputes the conclusion that it should therefore escape judicial' review. But as discussed in the next section, we disagree. The Director's decision not'to take enforcement action against the Gilber-tos' fence was. a discretionary one that is not ordinarily subject to judicial review., B. We Decline To Review The Director's Decision. .CBJ argues that the Director's .decision — as an "advice. letter" on CDD's enforcement policy — was not in fact appealable within the CBJ administrative hierarchy. Yankee points to CBJ ordinances that provide for appeals as a matter of right to the Commission and then to the. Assembly. But whether CBJ could and did authorize various levels of administrative review of the Director's decision is of no consequence to us if the decision is of a type that is not ordinarily subject to further appellate review in the courts. As explained above, we view .the Director's decision as an exercise of his enforcement authority, that is, a decision not to act on Yankee's complaint. Generally, courts decline to review executive-branch decisions not to prosecute an individual or not to enforce a law under particular circumstances. While issues of enforcement discretion arisé more often in the criminal context, our cases provide a framework for considering them in the civil context as well. In Public Defender Agency v. Superior Court, Third Judicial District, we considered whether the superior court could order the attorney general to prosecute a civil contempt proceeding for a parent's failure to p.ay child support. We held, it could not. We observed that under the common law the attorney general's "discretionary control over the legal business of the state, both civil and criminal, includes the initiation, prosecution, and disposition of cases." We adopted the rule that "[w]hen an act is committed to executive discretion, the exercise of that discretion within constitutional bounds is not subject to the control or review of the courts," because "[t]o interfere with that discretion would be a violation of the doctrine of separation of powers." We concluded that the superior court's order requiring the attorney general to prosecute a particular case of nonsupport "overstepped this line": "although we .have jurisdiction to entertain this case., and to find, as we have, the existence of legal authority [for the attorney general to bring the nonsupport action], we do not have power to control the exercise of the [attorney [g]eneral's discretion as to whether he will take action in any particular cases of contempt for non-support." We addressed a similar issue in Vick v. Board of Electrical 'Examiners, where we considered the scope of appellate authority over a licensing board's decision-based on the recommendation of an investigative division — not to commence a license revocation proceeding. We noted that "we will sometimes inquire into the basis of an agency's decision to assure that it is in' conformity with law and that it is not so capricious or arbitrary as to offend due process," but we also observed that "the extent of judicial review of discretionary determinations of an agency must necessarily vary with the subject matter." That is, "[w]hen a matter falls within ,an area traditionally recognized as within an agency's discretionary power, courts are less inclined to intrude than when the agency has acted -in a novel or questionable fashion." We explained: ¡ When an agency functions to protect the public in general, as contrasted with- providing a forum for the determination of private disputes, the agency normally-exercises its discretion in deciding whether formal proceedings should be commenced. In matters of occupational licensure the decision to initiate proceedings for revocation or suspension is comparable to the function of a public prosecutor in deciding whether to file a complaint. Questions of law and fact, of policy, of practicality, and of the allocation of an agency's resources all come into play in making such a decision. The weighing of these elements is the very essence of what is meant when one speaks of an agency exercising its discretion.[ ] Notwithstanding this discussion of the limits on appellate review, we considered under the abuse of discretion standard the appellant's claims in Vick that the licensing board had failed to pursue certain relevant information; we concluded that "the board and the division did consider the matters put before them and that no abuse of discretion has been demonstrated." A few years later the United States Supreme Court held in Heckler v. Chaney that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." As we did in Vick, the Court highlighted the "complicated balancing of a number of factors which are peculiarly within [the agency's] expertise." The Court also observed "that when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect"; whereas "when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner." But the Heckler Court noted that not every enforcement decision by an executive agency is by definition unre-viewable: the legislature could empower courts to review such decisions "either by setting substantive priorities, or by otherwise circumscribing an agency's power to discriminate among issues or cases it will pursue." As suggested in Heckler, we have reviewed agency decisions when the legislature has statutorily narrowed or eliminated the agency's enforcement discretion. In State, Department of Fish & Game, Sport Fish Division v. Meyer, were viewed a case-closing order of the Alaska State Commission for Human Rights, concluding that the agency's compliance with the Human Rights Act did not "involve the exercise of prosecutorial discretion at all." The Commission's case-closing decisions were reviewable because "the [Human Rights Act] grants no discretion to discontinue the process once the investigator finds substantial evidence of discrimination, unlike the statutes at issue in Vick and Heckler." Our review of these cases convinces us that we should not review the CDD Director's decision in this case. First, unlike the Human Rights Act at issue in Meyer; the CBJ grants the CDD and its Director broad discretion in determining whether to take action regarding potential violations of the land use code. Thus even if we were convinced that the Director's interpretation of the plat notes was incorrect, we would not be in a position to second-guess his discretionary exercise of enforcement authority; whether to take action against the Gilbertos' fence would still depend on "[questions of . policy, of practicality, and of the allocation of [the] agency's resources," and "[t]he weighing of these elements is the very essence of what is meant when one speaks of an agency exercising its discretion." Furthermore, we recognized in Vick that this enforcement discretion is due more judicial deference "[w]hen an agency functions to protect the public in general, as contrasted with providing a forum for the determination of private disputes"; such is the case here, as the ODD does not provide an adjudicative forum. And Yankee does not dispute that the Director's decision was "within an area traditionally recognized as within [the CDD's] discretionary power," meaning that we "are less inclined to intrude than when the agency has acted in a novel or questionable fashion." It is also significant that the Director's decision was not an exercise of coercive power, but rather a decision to continue the status quo; as noted in Heckler v. Chaney, the lack of an "action" gives the courts less of "a focus for judicial review, inasmuch as the agency must have exercised its power in some manner." Furthermore, we do not see, nor does Yankee argue, that the Director's decision was so arbitrary or capricious as to implicate due process concerns. And importantly, while the appellant in Vick lacked another vehicle for relief outside of the administrative appeal process, Yankee has another option — a direct suit against the Gilbertos in superior court, in which he can litigate his standing to enforce the Montana Creek plat notes and whether his interpretation of those notes is the correct one. We conclude, therefore, that the Director's decision in this case, as a discretionary exercise of his enforcement authority, should not be subject to judicial review. Y. CONCLUSION We AFFIRM on other grounds the superi- or court's dismissal of Yankee's appeal. .A plat is a scale drawing — in this case of a subdivision. A note on that plat acts as a restrictive covenant. See City and Borough of Juneau Code (CBJ) § 49.15.440(4) (March 2013) (renumbered with slight language changes in CBJ § 49.15.412(b) (June 2017)) ("When such a condition of approval [of a subdivision's Anal plat] entails a restriction upon the use of all or part of the property being subdivided, a note specifying such restrictions shall be placed on the face of the plat. Such note shall constitute a restrictive covenant in favor of the municipality and the public, and shall run with the land, enforceable against all subsequent owners."). Many provisions in the 2013 version of the code, in effect when Yankee first complained to the CDD, remain the same in the current code. We note where the versions differ but for simplicity refer to the CBJ in the present tense. . These plat notes summarize conditions that were explained in more detail by CDD staff during the plat approval process: The concept plan must be modified to include a greenbelt and visual buffer setback for all lots on the outer perimeter of the concept plan site including Montana Creek Road. The setback shall provide that no building or structure may be located closer than 30 feet to a perimeter lot line and that the outermost 20 feet of the setback area must be left in natural vegetation and topography. The setback area . shall be maintained to preserve an effective visual screening along the perimeter using vegetation. . S. Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Bd. of Adjustment, 172 P.3d 768, 771 (Alaska 2007) (citing Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002)). . Id. (quoting Alaska Pub. Emps. Ass'n v. State, 831 P.2d 1245, 1247 (Alaska 1992)). . Vick v. Bd. of Elec. Examiners, 626 P.2d 90, 93 (Alaska 1981) (citing K&L Distribs., Inc. v. Murkowski, 486 P.2d 351, 358 (Alaska 1971)). . On appeal Yankee contends that he was seeking a change in CBJ policy and that he recognized that either he or the CDD would have to follow up any policy change with an enforcement action directed specifically against the Gilbertos' fence. At the time, however, Yankee appeared to be asking the CDD to take immediate action. The one relevant writing of Ms that is in our record and predates the Director's decision' — an email to the Director — -states that he is waiting for the "the decision on said fence" but does not understand "your office allowing this fence to remain in place (clearly a violation of subdivision plat) while your staff conducts an open-ended study looking for any criteria to 'authorize' this fence," and that he is "again requesting that this 'setback' be honored, while the above research/study is conducted." This is consistent with the CDD planner's record that "Mr. Yankee wants the fence to come down ideally." . CBJ § 49.15.310. . CBJ § 49.10.510. . CBJ § 49.10.600-.660, . See CBJ § 49.10.510. . See CBJ § 49.15.440(4) (March 2013) (renumbered with slight language changes in CBJ - § 49.15.412(b) (June 2017)) ("Any such restrictive covenant may be enforced against the subdi-vider or any subsequent owner by the municipality by injunction or other appropriate action, in -the same manner as a permit or permit condition, pursuant to CBJ 49.10,600-660...."). ., See CBJ § 49.10.600(a) (emergency powers); CBJ § 49.10.620(a) (compliance order); CBJ § 49.10:630 (civil action); CBJ § 49.10.640 (criminal penalties); CBJ § 49.10.650 (inspection warrant). . . To distinguish the Director's decision from a statement of CBJ policy — an unreviewable "advisory opinion" — Yankee argues, for example, that "[t]he Decision clarifies the CDD fence policy resolving, pursuant to the Director's enforcement authority, the complaint brought by Mr. Yankee"; he also faults CBJ for not citing cases in its appellee's brief holding that "subject matter jurisdiction [was] lacking when an administrative official with jurisdiction over enforcement exercised thfat] enforcement authority." (Emphasis added.) . See CBJ § 49.20.110(a) ("Review by the commission of a decision of the director! ] may be requested by filing a notice of appeal.... The appeal shall be heard unless it presents only minor or routine issues...."); CBJ § 49.20.120 ("Appeal to the assembly is a matter of right."). . See, e.g., State v. District Court, 53 P.3d 629, 631 (Alaska App. 2002) ("Both the Alaska Supreme Court and [the Court of Appeals] have declared that charging decisions are committed to the discretion of the executive branch; so long as these decisions are exercised within constitutional bounds, they are not subject to judicial control or review."). . 534 P.2d 947, 948 (Alaska 1975), . Id. at 950-51. . Id. . Id. . Id. at 951; see also Ross v. U.S. Attorney's Office, 511 F.2d 524, 52.5 (9th Cir. 1975) (per curiam) Recognizing the "well-settled principle that mandamus does not lie to compel a United States District Attorney to perform a discretionary act"); State v. Williams, 356 P.3d 804, 808 (Alaska App, 2015) ("The decision whether to actively participate in the prosecution of any given case is discretionary. on the part- of the executive branch." (citing Public Defender, 534 P.2d at 950-51)). . 626 P.2d 90, 91-92 (Alaska 1981). . Id. at 93 (citing K & L Distribs., Inc. v. Murkowski, 486 P.2d 351, 358 (Alaska 1971)). . Id. . Id. . Id. (footnote omitted). . Id. . 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (citing cases). . Id. . Id. at 832, 105 S.Ct. 1649 (emphasis in original). . Id. at 833, 105 S.Ct. 1649; see also Inmates of Attica Con. Facility v. Rockefeller, 477 F.2d 375, 380 (2d Cir. 1973) ("In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary."). . 906 P.2d 1365, 1373-74 (Alaska 1995) (noting the compulsory language of the agency's statutory mandate and observing that "if the Commission wants its staff to have this discretionary authority, it must be obtained from the legislature, not the judiciary"), superseded by statute, AS 18.80.112(b), as stated in Huit v. Ashwater Burns, Inc., 372 P.3d 904, 914 n.52 (Alaska 2016). . See id. at 1373; see also Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 623-24 (Alaska 2012) (highlighting the mandatory language in the Human Rights Act regarding the Commission's investigations). We also review for abuse of discretion Bar Counsel's decision to close a grievance investigation or to not pursue a complaint. See McGee v. Alaska Bar Ass'n, 353 P.3d 350, 352, 354 (Alaska 2015) ("Bar Counsel's decision to close McGee's grievance without a formal investigation was not arbitrary or capricious, and we see no breakdown in the grievance process warranting interference with Bar Counsel's decision."); Anderson v. Alaska Bar Ass'n, 91 P.3d 271, 272 (Alaska 2004) ("[W]e conclude that Bar Counsel did not abuse his discretion in declining to accept the grievance for investigation.''). But attorney discipline cases are much different from ordinary administrative appeals due to our inherent authority to regulate the practice of law; we review attorney discipline cases directly. See McGee, 353 P.3d at 351 ("In Anderson v. Alaska Bar Ass'n we held that there was no right to appeal grievance-closing decisions to the superior court, but . we would directly review such decisions."); Anderson, 91 P.3d at 272 ("[Gjrievance-closing decisions under Bar Rule 22(a) may, upon timely request of a complainant, be reviewed by this court."). . 906 P.2d at 1372-74. . See CBJ § 49.10.600(a) ("When the department finds . that a person is causing . a condition or activity which, in the judgment of the department, presents an imminent or present danger to the health, safety or welfare of the people ., and it appears to be prejudicial . to delay action until an opportunity for a hearing can be provided, the department, without prior hearing, may order that person by notice to discontinue, abate or alleviate the condition or activity." (emphasis added)); CBJ § 49.10.620(a) ("When, in the opinion of the department, a person is violating . a provision of this title, . the department may notify the person of its determination by personal service, or certified mail." (emphasis added)). . See Falls Rd. Cmty. Ass'n v. Baltimore Cty., 437 Md. 115, 85 A.3d 185, 201-02 (2014) (holding that County could not be required to pursue zoning enforcement action, due to its discretionary nature, and analogizing to the discretion "of a State's Attorney who must decide which criminal cases to prosecute"). . Meyer, 906 P.2d at 1373 (quoting Vick v. Bd. of Elec. Exam'rs, 626 P.2d 90, 93 (Alaska 1981)); cf. Newman v. United States, 382 F.2d 479, 482 (D.C. Cir. 1967) (explaining that "while [prosecu-torial] discretion is subject to abuse or misuse just as is judicial discretion, deviations from [a prosecutor's] duty as an agent of the Executive are to be dealt with by his superiors" and "no court has any jurisdiction to inquire into or review [a prosecutor's] decision"); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1546 (1981) ("Courts often justify their refusal to review prosecutorial discretion on the ground that separation-of-powers concerns prohibit such review."). . 626 P.2d at 93. . See id. . 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714(1985). . See Vick, 626 P.2d at 93. . Id. at 92 (noting appellant's concession "that the final decision to revoke or suspend a license lies within the discretion of the [Board of Electrical Examiners]"). . CBJ § 49.15.440(4) (March 2013) (renumbered with slight language changes in CBJ § 49.15.415(b) ( June 2017)) ("Any such restrictive covenant may be enforced against the subdi-vider or any subsequent owner . by any specifically affected member of the public.").

12345698

James Kevin COLEMAN (aka James Kevin Almudarris), Appellant, v. STATE of Alaska, Appellee

Coleman v. State

2017-10-13

Court of Appeals No. A-11909

502

512

407 P.3d 502

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.

James Kevin COLEMAN (aka James Kevin Almudarris), Appellant, v. STATE of Alaska, Appellee.

James Kevin COLEMAN (aka James Kevin Almudarris), Appellant, v. STATE of Alaska, Appellee. Court of Appeals No. A-11909 Court of Appeals of Alaska. October 13, 2017 Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. A James Klugman, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. 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).

6160

37276

OPINION Judge ALLARD. James Kevin Coleman was convicted, following a jury trial, of second-degree burglary, second-degree theft, and fifth-degree criminal mischief based on allegations that he broke into a storage shed used by a commercial bike shop and stole two bicycles. Coleman was also convicted of making a false report. On appeal, Coleman challenges his conviction for burglary, arguing that the bicycle storage shed was too small to qualify as a "building" for purposes of the burglary statutes. Coleman further contends that there was insufficient evidence that he was the person who broke into the shed and stole the bicycles, and that the trial court erred in denying his motion for a new trial based on the weight of the evidence. Coleman also challenges his conviction for making a false report, arguing that his false statement to the police did not qualify as a false "report" of a crime under AS 11.66.800(a)(2). For the reasons explained in this opinion, we conclude that the bicycle storage shed qualified as a "building" as that term is defined in the burglary statutes. We also conclude that the evidence supporting Coleman's burglary, theft, and criminal mischief convictions was legally sufficient, and that the trial court did not err in denying Coleman's motion for a new trial. However, we' conclude that there was insufficient evidence to convict Coleman of making a false report, given the nature of his false statement-to the police and the circumstances under which that statement was made. Accordingly, we affirm Coleman's convictions for second-degree burglary, second-degree theft, and fifth-degree criminal mischief, and we reverse his conviction for making a false report. Why we conclude that the bicycle storage shed was large enough to qualify as a "building" for purposes of Alaska's burglary statute Under AS 11.46.310(a), a person commits burglary if the person "enters or remains unlawfully in a building with the intent to commit a crime in the building." Alaska Statute 11.81.900(b)(5) defines "building," in pertinent part, as follows: "building," in addition to its usual meaning, includes any propelled vehicle or structure adapted for overnight accommodation of persons or for carrying on business!)] In the current case, Coleman was convicted of second-degree burglary for breaking into a shed that was used to store bicycles for a business. The shed was a permanent wooden structure with four walls, a floor, and a roof; it contained multiple enclosed storage lockers, secured by individual padlocks-. Although the record does not reveal the exact dimensions of the shed, the evidence presented at trial indicated that the shed was approximately chest- to shoulder-high, and the shed could contain 20 to 25 bicycles. To enter the shed to retrieve the bicycles, an average-sized person would need to stoop. At trial, the general manager of the bicycle shop testified that the shed was used to store bicycles that were brought in for repairs. On an average summer work day, 5 to 6 employees would access the shed to retrieve or store bicycles. The .manager testified that employees would typically not need to fully enter the shed to ¡retrieve the bicycles, but that they would sometimes have to crawl, all the way into the shed if they were having difficulty .getting a bicycle out. The entrance to each storage locker in the shed was kept secured with a padlock and equipped with a break-in alarm! On appeal, Coleman argues that the shed did not qualify as a "building" for purposes of the burglary statute. Coleman contends that, because the crime of burglary was originally intended to protect dwellings, a structure can only qualify as a "building" for purposes of the burglary statute if it is either designed for human habitation or large enough to "comfortably accommodate people moving around" in it. According to Coleman, because the shed was made to accommodate bicycles and not people, and because an average-sized person would need, to stoop to enter the shed, the shed did not qualify as a "building," and his conviction for second-degree burglary must be reversed. ' In response,' the' State argues that the bicycle storage shed was a building both in the "usual meaning" of the word and because the shed was a. structure that had been "adapted" for carrying on .the bicycle -shop's business — specifically, the storing and repairing of bicycles. The State concedes, however, that "at some point, a storage unit [may be] so small that it could not reasonably be considered 'a structure,' " and as such, would not be "a building." The issue presented here is, therefore, how large a structure must be in order to be considered a'"building" for purposes of the burglary statute. Because the statute is ambiguous on this point, we look to the purpose of the legislation and the legislative history for indications of legislative intent. The definition of "building", codified in. AS 11.81.900(b)(5) is deiived from Oregop la;w. Both Alaska and Oregon define "building-" broadly, and the two statutoiy definitions of "building" are essentially the same. As already set out, the Alaska statute defines "building" to include "its usual meaning" as well as "any propelled vehicle or structure adapted for overnight accommodation of persons or for. carrying on business." Likewise, under the Oregon statute, "building" is defined "in addition to its ordinary meaning" as also including "any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein." The legislative history of these statutory definitions indicates that the Alaska and the Oregon legislatures intended these definitions ¾0 be expansive. The commentary to the tentative draft of Alaska's 1978 criminal code revision states that the definition is intended to be "broad enough to include house trailers, mobile field offices, house boats, vessels and even tents used as dwellings." The commentary to the Oregon Criminal Code likewise explains that the definition of "building" was expanded from the "ordinary meaning of the word" so as to also include "those structures and vehicles which typically contain human beings for extended periods of time, in accordance with tbe original and basic rationale of the crime [of burglary]: protection against invasion of premises likely to terrorize occupants." Coleman relies heavily on the Oregon commentary for his claim that the Oregon and Alaska legislatures intended to limit the definition of "building" to only those vehicles or structures that "typically contain human beings for extended periods of time." But neither the plain language of the statute nor the legislative history support this claim. At common law, the crime of burglary inquired proof that the defendant-unlawfully entered a human habitation. Burglary was defined as the breaking and entering of a dwelling at night with the intent to commit a crime therein. The common-law offense of burglary was therefore strictly an offense aimed at protecting the security of habitation rather than property. But statutory enactments over the past 60 years have changed and expanded the common-law definition of the offense. For most jurisdictions, the requirement that the crime take place at night or that it be directed at a dwelling have disappeared. Instead, most states (including Alaska and .Oregon) now define burglary simply as unlawfully entering or remaining in a "building" with.the intent to commit a crime therein. The offense is elevated to a higher degree of burglary .with increased punishment if the "building" is a "dwelling" or if the defendant's conduct poses a particular danger to people found within the building. This transformation is evident in the relevant Oregon caselaw, which has upheld burglary convictions involving storage sheds and storage containers, even though they, were designed to accommodate property, not people. For example, in State v. Essig, the Oregon Court of Appeals held that a large potato storage shed qualified as a building under the burglary Statute, describing it as a substantial structure and thus a building within the ordinary meaning of the term. Similarly, in State v. Handley, the Oregon Court of Appeals held that a storage locker in an apartment complex's carport qualified as a building. In State v. Barker, the court held that "self-contained storage units" within a commercial storage facility qualified as "buildings," and in State v. Webb, the court held that a tractor trailer adapted by a busi ness to store goods likewise qualified as a "building." Coleman points out that these Oregon cases all involve storage containers or sheds that are considerably larger than the bicycle storage shed involved in his case. For example, the potato shed in Essig was large enough to "contain several trucks." Likewise, the tractor trailer in Webb was twenty-five feet long and eight to nine feet wide (although no height was listed). But not all of the Oregon cases involve such large storage structures. The storage lockers in Hand-ley were only four feet wide, nine feet long, and seven feet high. And the dimensions of the storage unit in Barker were essentially unknown, although the court noted that it was "large enough for a human being to enter and move about." Coleman also relies on State v. Scott,' a 1979 Oregon Court of Appeals case in which the court reversed a conviction for burglary of a railway boxcar because it concluded that the boxcar did not qualify as a "building" for purposes of Oregon's burglary statute. In Scott, the court quoted the legislative commentary to Oregon's burglary statute, noting that the expanded definition of "building" under the statute was still intended to comport with "the original and basic rationale for the protection against invasion of premises likely to terrorize occupants." The court therefore concluded that the railway boxcar did not fit the expanded definition because there was no evidence presented at trial that the boxcar had been adapted "for carrying on business therein" or "for accommodating people overnight" and there was nothing to indicate that the boxcar was anything other than "a structure on wheels designed for the storage of goods during their transportation." We conclude that Coleman's reliance on Scott is misplaced. Subsequent Oregon Court of Appeals cases have narrowed Scott to its facts, explaining that Scott involved a movable structure on wheels akin to a vehicle, rather than a stationary structure that could fit into the ordinary meaning of the term "building." The reasoning of Scott has also been criticized. In Barker, for example, the Oregon Court of Appeals rejected the premise that a court must examine the primary uses of the storage units at issue "to determine whether an unauthorized entry would be likely to terrorize any human occupants." Instead, the court looked to the "ordinary meaning" of the term "building," as evidenced by various dictionary definitions of the term — ultimately concluding that the storage units at issue qualified as "buildings" in the "ordinary sense of the word" because they were part of a "roofed and walled structure constructed for permanent use." Like the storage units in Barker, the storage shed at issue in Coleman's case appears to fit within the dictionary meaning of the term "building." Black's Law Dictionary defines the word "building" as: [A] structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof. Here, the storage shed was a permanent structure with four walls, a roof, a floor, and a fixed entry place through which a person could enter the structure in order to store or retrieve the bicycles placed there by the business. Coleman contends that, despite these attributes, the storage shed does not .qualify as a "building" because the entrance was not high enough for an average-sized person to enter without stooping and it was not big enough for an average-sized person to move around "comfortably." We agree with Coleman that, as a general matter, a structure that is too small for a human' being to physically enter and occupy with their whole body cannot be considered a "building" that can be burglarized. We note that courts in other jurisdictions have reached a similar conclusion with regard to their burglary statutes. For example, in Paugh v. State, the Wyoming Supreme Court held that a three-foot display case in a department store was not a "separately secured or occupied portion" of a building for purposes of Wyoming's burglary statute because the display ease was "too small to accommodate a human being." The Washington Court of Appeals similarly held that a police evidence locker that was 10 inches high, 10 inches -wide, and 2 feet deep was too small to qualify as a "building" under Washington's burglary statute. Coin boxes at a car wash have, likewise been found to be too small to qualify as a "building," as have soft drink vending machines, and a large tool box on wheels. But these cases all involve containers that are significantly smaller than the storage shed at issue in Coleman's case. Here, the trial testimony indicated that the bicycle shop's storage shed was designed to be wide enough, long enough, and tall enough — approximately chest- to shoulder-high — to allow an average-sized person to enter the shed and move about, albeit not necessarily for an extended period of time and not necessarily entirely comfortably. Indeed, the testimony at trial established that human beings did, at times, fully enter the shed to retrieve the bicycles stored inside. Given these circumstances, and given that the shed otherwise exhibited all of the attributes associated with the term "building" in the usual meaning of the term, we conclude that the storage shed at issue here qualified as a "building" for purposes of Alaska's second-degree burglary statute. We therefore reject Coleman's claim that the evidence was insufficient to support his conviction for second-degree burglary on this ground. Why we_ conclude that the evidence was insufficient to support Coleman's conviction for making a false report Alaska Statute 11.56.800(a)(2) provides, in relevant part, that "[a] person commits the crime of false . report if the person knowingly . makes a false report to a peace officer that a crime has occurred or is about to occur." In the present case, Coleman was charged with making a false report based on the fact that, when Coleman was stopped by the police and questioned about why he was in the area, Coleman falsely claimed that he was in the area because he was chasing his van, which he falsely said had been stolen. The evidence at trial established that the police responded to the burglary alarm at the bicycle shop around 4:00 a.m. After arriving at the scene, the police found two bicycles from the bicycle shop on the ground nearby. In the vicinity, the police also discovered Coleman's van, which was "high-centered" on a cement pillar in the parking lot. The police also saw a man (later determined to be Coleman)'-trying to leave the scene in a taxi cab. One of the officers stopped the taxi and questioned Coleman, who was in the back seat .of the cab, sweating profusely. When the. officer asked Coleman why he was in the area, Coleman told a confusing story about his van being stolen and, chasing the stolen van on his bicycle. Coleman could not explain why he was in a taxi cab or why he was leaving his van behind. Coleman also could not explain where the bicycle he had used to chase the van was. When the officer asked Coleman why he had not called to report the stolen van to the police, Coleman said that the police "handle things differently" and that he would "take care of it himself." At trial, the officer testified that Coleman was clearly nervous during the police questioning and that his explanation for his presence at the scene made no sense and was not believable. Based on 'their suspicions that Coleman was responsible for the burglary, the police arrested Coleman. Following his arrest, the' keys to Coleman's "stolen" van were found in Coleman's pocket. .Coleman testified in his own defense at trial, denying any involvement in or knowledge of the burglary. He claimed that he had been driving his van' on his way to buy a couch when he took a wrong turn and ended up high-centering his van in the parking lot of the strip mall. When the police arrived in the area, he thought that they could have been called because the high-centering had made a lot of noise. Coleman admitted that his van had not been stolen, and he asserted that he lied to the police about his van being stolen and chasing his van on his bicycle because his license was suspended and he did not want to get in trouble for driving his van. The jury subsequently convicted Coleman of making a false report under • AS 11.5q.800(a)(2). On appeal', Coleman argues that his false statement about chasing his stolen van did not qualify as a false "report" of a crime under AS 11.56.800(a)(2) because it was made only in response to police questioning and it was not believed or acted on by the police. Coleman contends that "report" in this context requires "a formal disclosure with the concomitant expectation that the police will take action on the information." Coleman's claim requires us to construe the meaning of making a false report under AS 11156.800(a)(2). When we construe the meaning of a statute, we consider the statute's language, its purpose, and its legislative history in an attempt to give effect to the legislature's intent. Here, the plain language of AS 11.56.800(a) suggests that there is a distinction between giving "false information" and making "a false report." . Under subsection (a)(1) of AS 11.56.800, it is a crime to "give[] false information to a peace officer . with the intent of implicating another in an offense." The same subsection also criminalizes "giv[ing] false information" concerning one's identity during an arrest or a criminal investigation. Similarly, under subsection (a)(6), it is a. crime to "give[.] false information" to a public employee .relating to a person's eligibility for a permanent fund dividend. In-contrast, subsection (a)(2) makes it a crime to "make[ ] a false report to a peace officer that a crime has occurred or is about to occur." Likewise, subsection (a)(3) of the statute criminalizes "mak[ing] a false report" or "giv[ing] a false alarm" that a fire or other occurrence imminently dangerous to life or property has occurred or ié about to occur. And under subsection (a)(4) of the statute, it is a crime to' "make[ ] a false report" to the Department of Natural -Resources concerning the condition of a dam or reservoir. Because two subsections of the statute make it a crime to give "false information," while the other three subsections of the statute declare that it is crime to make a "false report" or to give a "false alarm;" we are to presume that the legislature meant something different by these phrases. That is, we should presume that giving "false information" does not mean exactly the-, same thing as making a "false report." And, in fact, when we examine the different subsections that use the same language, they appear to share a common characteristic: subsections (a)(1) and (a)(5) involve situations that are more passive — the person is giving false information to the authorities that may mislead them about a certain fact or circumstance. In- contrast, subsections (a)(2), (a)(3), and (a)(4) involve'situations that are more active — the person is making a false report about an occurrence -that -requires immediate action on the part of the authorities. In other words, making a false report contemplates that the person is doing more than just passively giving a false statement to the authorities. Instead, the person is directly engaging with the authorities and summoning them to take some immediate action based on the person's false claim. The plain language of the statute therefore tends to support Coleman's contention that his false statement about his van being stolen did not constitute making a false report under AS 11.56.800(a)(2). The record makes clear that Coleman did not initiate the contact with the police; instead, he was contacted by the police, and he was responding to their questions about why he was in the area. In addition, although Coleman's explanation included a false statement that his van had been stolen, it was dear to the police that Coleman was not asking the police to take any action in response to this false statement. Indeed, Coleman was adamant that he had not reported the stolen van to. the police, he did not want the police involved, and he would "take care of it himself." - Coleman's argument on appeal is also supported by the legislative history for AS 11.56.800(a)(2). There is relatively little legislative history available for the offense of making a false report. But the legislative history that does exist suggests that the legislature's primary concern was' that law enforcement resources would be expended on investigating reports of crimes that the person knew to be false when they made the report. The published legislative commentary to AS 11.56.800(a)(2) explains that a person is subject to criminal penalties for making a false report of a crime "because of the likelihood that substantial amounts of law enforcement resources will be misapplied in investigating the report." Similarly,'the Senate Judiciary Committee's discussion of the offense focused on the fact that "dispatching a police officer or several police officers on a long goose chase is a fairly serious offense." Por example, Senator Clem Tillion explained that the offense was intended to address the kind of situation where "a person say[s] somebody has been killed, [and] offir eers proceed to the scene and find someone laughing at them." The Model Penal Code, from which AS 11.56.800(a)(2) is derived, also lends support to Coleman's claim that making a false report implies that the police are being asked, or could be expected, to take action on the false report. Like AS 11.56.800(a)(2), Section 241.5 of the Model Penal Code makes it an offense to "report[ ] to law enforcement authorities an offense or other incident within their concern knowing that it did not occur." The Commentary to this provision explains that, as originally drafted, § 241.5 "required proof that the actor 'eause[d] a law enforcement officer to act in reliance on the false information.' " But the Model Penal Code drafters later eliminated this requirement because of "the awkwardness of the causation inquiry," and because "false information of the sort covered [by this section] is likely to lead to some police action and reliance thereon." The Model Penal Code commentary therefore supports the conclusion that it is crime to make a false report of a crime because of the likelihood that the police will take some action in response to the sort of information that would be included in such a "report." On appeal, Coleman suggests that the offense should be strictly limited to circumstances where the State can prove that the defendant subjectively intended the police to take action on the false report, or circumstances where the State can prove that the police actually did take action based on the false report. We disagree. The legislative history of AS 11.66.800(a)(2) and the Model Penal Code commentary refer only to the "likelihood" that the defendant's act of falsely reporting a crime to the police will result in wasted law enforcement resources. They do not actually suggest that the State must prove that law enforcement resources were wasted in order to convict the defendant of making a false report. Nor do they suggest that the State has to prove that the defendant subjectively intended the police to take action and expend resources on the false report. Coleman points out that there are some jurisdictions that include this type of subjective intent in their definition of this crime. Under Minnesota law, for example, a person is guilty of falsely reporting a crime only if the person knows that the report is false and "intend[s] that the officer shall act in reliance upon it." Nebraska law likewise requires "an intent to instigate an investigation of an alleged criminal matter." And Missouri law recognizes a statutory defense for persons who retracted their false report "before the law enforcement officer or any other person took substantial action in reliance thereon." However, AS 11.56.800(a)(2) does not include this type of subjective intent element, and we are unwilling to read such a requirement into the statute without clear legislative history indicating that this was the legislature's intent. We are also unwilling to adopt Coleman's other bright-line proposals for this offense — specifically, his suggestion that the statute should only apply when the person has formally filed the false report, or when the person is responsible for initiating the contact with the police and summoning them to the scene. We agree that such circumstances are relevant considerations when determining whether a false statement about a crime constitutes a "false report" under the statute. But we do not agree that those circumstances represent the only ways that a person can commit the crime of making a false report under Alaska law. Instead, we conclude that the crime of making a false report of a crime requires the State to prove that the person knowingly made a false statement to the police that "a crime had occurred or was about to occur" under circumstances that objectively created a reasonable likelihood that the police would act on the false claim and expend law enforcement resources doing so. Applying these requirements to Coleman's case, we conclude that the evidence at trial was insufficient to establish that Coleman's false statement about his van being stolen qualified as a "false report" under AS 11.56.800(a)(2), even viewing the evidence in the light most favorable to upholding the jury's verdict. Here, the undisputed evidence at trial showed that, in response to police questioning, Coleman made a confusing statement about chasing his stolen van in an attempt to explain his presence at the scene of the recent burglary. Coleman's statement about his purportedly stolen van did not include any details or provide the type of information that the police would need to investigate such a claim. Moreover, Coleman made clear that he was not seeking any police assistance with regard to the stolen van or expecting the police to investigate the alleged crime. In fact, Coleman directly told the police that he did not want any police involvement in the theft of his van, and he insisted that he would "take care of it himself." It was also undisputed that the police did not believe anything Coleman told them, and the police did not respond to his false claim about chasing his stolen van as though it were an actual report of a crime that would need to be investigated. Thus, given the nature of Coleman's false statement about his van having been stolen, and the circumstances under which it was made, we conclude that the evidence was insufficient as a matter of law to establish the crime of making a false report under AS 11.56.800(a)(2). Coleman's other arguments Coleman also argues that there was insufficient evidence presented at trial that he was the person who committed the burglary, theft, and criminal mischief. When we review a claim of insufficient evidence, we must view the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the jury's verdict. We then determine whether the evidence, viewed in that light, was sufficient for a reasonable juror to find each element of the crime proved beyond a reasonable doubt. Here, eight to nine minutes after an alarm was triggered on one of the bicycle sheds, Anchorage police officers responded to the scene. The officers noticed that the door to one of the sheds had been forced open, and there were two bicycles on the ground nearby. The officers noticed a van in the vicinity — later identified as belonging to Coleman — "high-centered" on a cement pillar. One of the officers then saw Coleman "running or jogging toward what looked to be . a taxi" in the parking lot of a nearby gas station. The officer stopped the taxi and made contact with Coleman, who was by then in the back seat. When asked why he was in the area, Coleman stated that he had been chasing his van — which he claimed to have been stolen from his home — on a bicycle. Coleman later admitted that this was untrue. And Coleman could not explain why, having located his stolen van, he was now leaving the area in a taxi. When the police directed a dog to track from the shed, the dog led the police from the shed, to the location where the two bicycles were found, then to Coleman's van, and eventually to the gas station where Coleman had entered the taxi. Coleman argues that this circumstantial evidence tying him to the shed was "merely speculative." He also argues that the evidence from the tracking dog was not credible. But Coleman's argument rests on viewing the evidence in the light most favorable to himself. As explained above, we must view the evidence in the light most favorable to the jury's verdict. We have reviewed the record, and we conclude that the evidence was sufficient for a reasonable juror to find that Coleman was the person who committed the charged crimes. Coleman also challenges the denial of his motion for a new trial on similar grounds. According to Coleman, "the evidence prepon derates heavily against the verdicts." Coleman thus argues that the trial court abused its discretion in denying his motion for a new trial. - We review a trial court's denial of .a motion for a new trial under an abuse of discretion standard. When deciding a motion for a new trial, the trial judge does not "defer to the jury's assessments-'of witness credibility or the weight of the evidence; rather, the judge must reach their own independent assessment of the evidence." But a judge should grant a new trial only when the evidence supporting the conviction is "so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Here, as explained previously, ample evidence was presented at trial to support the jury's verdict. We thus conclude that the trial court did not abuse its discretion in denying Coleman's motion for a new trial. Conclusion We REVERSE Coleman's conviction for making a false report under AS 11.56.800(a)(2) and remand this case to the superior court for re-sentencing, as appropriate. We otherwise AFFIRM the judgment of the superior court. .The appellant's legal name appears to be James Kevin Almudarris, and this is reflected in the judgment. However, his birth name appears to be James Kevin Coleman, and he was referred to as "James Kevin Coleman" at trial. For the sake of consistency, we will refer to the appellant as "Coleman." . AS 11.46.310(a); AS 11.46.130(a)(1); and former AS 11.46.486(a)(2) (2012), respectively. . AS 11.56.800(a)(2). . See Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1234 (Alaska 2003). . See Timothy v. State, 90 P.3d 177, 178 (Alaska App. 2004); Austin v. State, 883 P.2d 992, 993 (Alaska App. 1994). . AS 11.81.900(b)(5). . Or. Rev. Stat. § 164.205(1). . See Alaska Criminal Code Revision, Tentative Draft, Part III, at 51 (1977) ("Offenses Against Property"). . See State v. Scott, 38 Or.App. 465, 590 P.2d 743, 744 (1979) (quoting Commentary, Proposed Oregon Criminal Code (1970), § 135 at 143). . See Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3d ed. 1982) at 246, 25556. . Id. at 255-56. . See, e.g., Alaska Criminal Code Revision, Tentative Draft, Part III, at 55 (1977) ("Offenses Against Property") ("The traditional definition of burglary has been gradually expanded over the years to include acts which would not have bfeen burglary in the common law sense."). . See AS 11.46.310(a); Or. Rev. Stat. § 164.215; see also former AS 11.20.100 (1970) (differentiating between "burglary of dwelling house" and "burglary not in dwelling house" and defining the latter as including "a building or part of it, or a booth, tent, railway car, vessel, boat, or other structure or erection in which property is kept") (emphasis added). . . See AS 11.46.300(a)(2) (elevating second-degree burglary to first-degree burglary if the building is a dwelling, if the person is armed with a firearm, if the person causes or attempts to cause physical injury, or the person uses or threatens to use a dangerous instrument). . See, e.g., State v. Webb, 262 Or.App. 1, 324 P.3d 522, 525 (2014); State v. Handley, 116 Or. App. 591, 843 P.2d 456, 456-57 (1992); State v. Barker, 86 Or.App. 394, 739 P.2d 1045, 1046-47 (1987); State v. Essig, 31. Or.App. 639, 571 P.2d 170, 171 (1977). . Essig, 571 P.2d at 171. . Handley, 843 P.2d at 456-57. . Barker, 739 P.2d at 1046-47. . Webb, 324 P.3d at 524. . Essig, 571 P.2d at 171. . Webb, 324 P.3d at 524. . Handley, 843 P.2d at 456. . Barker, 739 P.2d at 1047. . 38 Or.App. 465, 590 P.2d 743 (1979). . Id, at 744 (quoting Commentary, Proposed Oregon Criminal Code (1970), § 135 at 143). . Id. . See, e.g., Barker, 739 P.2d at 1046-47; Webb, 324 P.3d at 524. . Barker, 739 P.2d at 1046. . Id. at 1046-47. . Black's Law Dictionary 176 (5th ed. 1979); see also Austin v. State, 883 P.2d 992, 993 (Alaska App. 1994) (citing to this definition and concluding that a freezer was "a building"). .See, e.g., State v. Miller, 90 Wash.App. 720, 954 P.2d 925, 930 (1998) (noting that "burglary is ordinarily considered only in the context of a structure large enough to accommodate a human being"); State v. Deitchler, 75 Wash.App. 134, 876 P.2d 970, 972, n.6 (1994) (noting that á structure too small for a human being to live in or do business in is not a 'building' or 'structure' for purpose of Washington's burglary statute); Paugh v. State, 9 P.3d 973, 981 (Wyo. 2000) (noting that the Wyoming burglary statute was designed primarily to protect places where people sleep and also places that a person could occupy). Cf Iowa Code § 702.12 (defining "occupied structure" for purposes of Iowa's burglary statute as including structures where goods are stored and people are not present but excluding boxes, safes, or other objects which are "too small or not designed to allow a person to physically enter or occupy it"). . Paugh, 9 P.3d at 981. . Deitchler, 876 P.2d at 971. . Miller, 954 P.2d at 930. . State v. Bybee, 109 N.M. 44, 781 P.2d 316, 318 (App. 1989). . People v. Knight, 204 Cal. App. 3d 1420, 1424, 252 Cal.Rptr. 17 (Cal. App. 1988). . Alyeska Pipeline, 77 P.3d at 1234. . AS 11.56.800(a)(1). . Id, . AS 11.56.800(a)(5).- .' AS 11.56.800(a)(2). . AS H.56.800(a)(3). . AS 11.56.800(a)(4). . See Johnson v. State, 380 P.3d 653, 656 (Alaska 2016) (We "presume that the legislature intended every word, sentence, or provision of a statute to have some purpose, force, and effect, and that no words or provisions are superfluous") (internal-citations omitted). . Commentary to Alaska's Revised Criminal Code, Senate Journal Supp. No. 47 at 88, 1978 Senate Journal 1399. . Minutes of Senate Judiciary Comm., House Bill 661, 0:30:24-0:31:16 (May 1, 1978). . Id. . Model Penal Code § 241.5(2), False Reports to Law Enforcement Authorities. . American Law Institute, Model Penal Code and Commentaries (1980), Part II, § 241.5, at 162. . Id. . Minn. Stat. § 609.505. . Neb. Rev. St. § 28-907(l)(a). . Mo. Rev. Stat. § 575.080(2). . See State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016) (explaining that, under Alaska's sliding scale approach to statutory interpretation, "the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be"). .See Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008) ("When a defendant challenges the sufficiency of the evidence to support a criminal conviction, an appellate court is obliged to view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding ., the verdict."). . See Johnson, 188 P.3d at 702. . Id. . Sawyer v. State, 244 P.3d 1130, 1137 (Alaska App. 2011). . Taylor v. State, 262 P.3d 232, 233 (Alaska App. 2011). .Id. at 234 (internal citations omitted).

12345676

Jacqualine SCHAEFFER-MATHIS n/k/a Jacqualine SCHAEFFER, Appellant, v. Linus MATHIS, Appellee

Schaeffer-Mathis v. Mathis

2017-10-27

Supreme Court No. S-15936

485

497

407 P.3d 485

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.

Jacqualine SCHAEFFER-MATHIS n/k/a Jacqualine SCHAEFFER, Appellant, v. Linus MATHIS, Appellee.

Jacqualine SCHAEFFER-MATHIS n/k/a Jacqualine SCHAEFFER, Appellant, v. Linus MATHIS, Appellee. Supreme Court No. S-15936 Supreme Court of Alaska. October 27, 2017 J. Stefan Otterson, Otterson Law Office, Anchorage, for Appellant. Darryl L. Jones, Law Office of Darryl L. Jones, Palmer, for Appellee. - Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

6230

39667

OPINION STOWERS, Chief Justice. I. INTRODUCTION After nearly ten years of marriage and the birth of two children, a couple separated in 2012. Three years of contentiqus litigation followed, during which time the father had interim sole legal custody of the children, and the physical custody arrangements were modified multiple times. In 2015 the superior court issued the divorce decree and made findings regarding child custody and property distribution. The mother appeals, raising eight issues. We reverse and remand the superior court's decision regarding the mother's student loans and, if necessary, for a recalculation of the equitable distribution of II. FACTS & PROCEEDINGS A. Facts Jacqualine Schaeffer and Linus Mathis married in April 2002, separated in March 2012, and divorced in April 2015. Two children were born of the marriage, one in September 2002 and the other in June 2004. Schaeffer began working part-time toward the end of the marriage, after having been a stay-at-home mother, and she studied interi- or design online. She moved out of the marital home in October 2011 and filed for divorce the following month. She then moved back into the marital home, and she and Mathis sought marriage counseling. They ultimately separated on March 19, 2012, when Schaeffer allegedly hit Mathis in the head in front of their children, after which he called the police and she was arrested'and charged with assault. B. Proceedings 1. Interim motions and proceedings In November 2011 Schaeffer filed for divorce and requested joint legal and shared physical custody of the children. She used a form provided by the court system and did not pheck the form's box for indicating that she had safety concerns for .herself, or the children. In March 2012 Mathis filed a petition for a domestic violence protective order, and he filed a response to Schaeffer's complaint and asserted a counterclaim requesting sole legal and primary physical custody of the children because of "a history of domestic violence in this marriage with [Schaef-fer] being the abuser." Schaeffer filed a reply denying that she had committed domestic violence and.alleging that Mathis was "the primary perpetrator of domestic violence in the marriage and parenting relationships." She requested sole legal and primary physical custody. In April 2012 a hearing on the domestic violence and interim custody issues was held before Superior Court Judge Kari Kristian-sen, who found that Mathis testified credibly and that he proved by a preponderance of the evidence that Schaeffer had committed multiple acts of domestic violence against him. The court issued a long-term protective order because the protective, order in connection with Schaeffer's pending criminal assault case was not protecting Mathis from contact with Schaeffer. The court ordered Schaeffer to "enroll in a program for the rehabilitation of perpetrators of domestic violence, and a substance abuse treatment program." The court awarded Mathis interim sole legal and primary physical custody and granted Schaeffer visitation. Schaeffer moved for reconsideration, which was denied; she was also ordered to pay child support. In July 2012 the superior court ordered a custody investigation. In October Schaeffer filed a motion to modify interim custody based on three alleged substantial changes in circumstances. She alleged that Mathis had been abusive toward her and the children and had regularly failed to meet the children's needs since the entry of the interim custody order, that she had transitioned to full-time employment and her new schedule conflicted with the visitation arrangement, and that she ha,d "complied with and completed her court-ordered anger management and alcohol counseling program requirements." She requested sole legal and primary physical custody of the children or, in the alternative, a shared week-on/week-off custody schedule. - The day after filing that motion, Schaeffer filed domestic violence petitions on behalf of the children. She also appears to have filed a report with the Alaska State Troopers alleging Mathis caused injury to mié of the children, and she filed a report with the Office of Children's Services (OCS). In an October 2012 affidavit Mathis described a State Trooper incident that is consistent with the superior court's later finding that Schaeffer encouraged one of the children "to make false allegations to law enforcement that his father grabbed him by the shoulder leaving a braise." Regarding the OCS report, Mathis related in the affidavit that a caseworker was sent to the children's school and that the investigation was closed because the caseworker found nothing wrong with the children. Mathis responded to Schaeffer's motion to modify interim custody, denying the allegations against -him but recognizing that Schaeffer "should have expanded visitation to account for her job." The superior court issued an order modifying interim custody in December 2012. The court noted that both Schaeffer and Mathis had made serious allegations against each other without providing much evidence. The court indicated that Schaeffer had "made some progress toward meeting the assessment and treatment goals" but that she had not demonstrated that she had complied with the requirements. The court granted Mathis continued interim sole legal custody of the children. It set a week-on/week-off interim physical custody schedule to take effect upon Schaeffer providing her substance abuse assessment and two clean urinalysis test results. The custody investigation ordered in July and was completed in January 2013. The court custody investigator expressed concern that the children may have been coached by Schaeffer because of statements they made to him as well as information from OCS that the older child had reported being coached. Based in part on the concerns about coaching, the custody investigator recommended that Mathis be given sole legal custody. The custody investigator recommended a week-on/week-off physical custody schedule. ' In October Mathis moved to modify the interim custody order, which by then had changed to a week-on/week-off schedule; .he also moved for a partial no-contact order. The superior court granted the partial no-contact order and reduced Schaeffer's time with the children to three weekends each month. In April 2014 Schaeffer filed a motion for updates to the custody investigation and modification of interim custody. In light of the children's experiences over the 19 months since the children were interviewed and their alleged increased maturity and ability to express themselves, .she requested "a re-interview of the boys and the parents and anyone else'that the investigator . believes is relevant to any new information the boys may provide." Her attorney filed a supporting affidavit indicating that the attorney had contacted the custody investigator; she reported that the investigator said that it was "not unreasonable to update their interviews" and that completing an update .a couple of weeks before trial would be possible if a court order were issued as soon as possible. According to Schaeffer's attorney the investigator "believefd] that it would also be necessary to re-interviéw the parents and any others that may be relevant to any new information the children may provide." Mathis opposed the motion, expressing "concern! ] about the ongoing attempts to manipulate the children and [the] fact that [Schaeffer's] proposal appears to be a full custody investigation." The superior court denied Schaeffer's motion to modify interim custody and to update the custody investigation, finding that Schaeffer had "not established a factual basis . '. for subjecting the boys to another [custody investigator] interview." 2. The divorce trial . The divorce trial was held before Superior Court Judge Vanessa White in August and September 2014. The superior court heard testimony from, a number of witnesses, including Schaeffer, Mathis, and the custody investigator, In April 2015 the court entered the decree of divorce and issued Findings of Fact and Conclusions of Law. •The court, distributed the .marital estate, awarding the marital home to Mathis and dividing retirement' assets and debts. The court cited testimony by Schaeffer regarding student loan debt she incurred during the marriage, but it declined to recognize that debt as marital debt based on (1) lack of documentation, (2) its finding that Mathis credibly testified that he had been told the loans were federally subsidized arid did not need to be repaid, and (3) Schaeffer's failure to show that she had completed the course of study the loans were taken out for. The court found that there was no dispute regarding the distribution of personal property and that Schaeffer and Mathis had accomplished that distribution themselves. Because it found that Schaeffer and Mathis both were in good health and had roughly equivalent earning capacities, the court distributed the marital estate equally and required Mathis tó make a balancing payment to Schaeffer. Mathis was permitted to deduct child support arrears Schaeffer owed him from that balancing payment. Regarding child custody, the court addressed Schaeffer's allegations that Mathis was physically and emotionally abusive to Schaeffer and the children and found her allegations not credible. The cqurt found "by a preponderance of the evidence that [Mathis] was the victim of physical violence by [Schaeffer] on the date, of the parties' separation." Because the court found that only one act of domestic violence was proved and because that incident did not result in serious injury to Mathis, the court determined that the domestic violence presumption in AS 25.24.150(g) did not apply. The court found that both parents were capable of meeting the children's needs but that Mathis was more motivated to focus on the children's needs. The main reason for this determination was the finding that Schaeffer "encouraged the children on more than one occasion to lie to various authorities (iaw enforcement, counselors) about [their] father's conduct." The court also expressed concern about Schaeffer having "coached the children in an effort to justify her alcohol consumption." And it noted that Schaeffer chose to take personal vacations instead of spending her custodial time with the children twice during the separation prior to trial and had allowed her work commitments to sometimes interfere with her parenting responsibilities for several days. The court found that Mathis had indicated his willingness to maintain the family home and therefore could provide the children with stability of place. The court expressed some concern that Schaeffer "minimized the .problems that alcohol ha[d] caused in her relationships" and that she had consumed alcohol while parenting in the past but gave that factor little weight because of Schaeffer's testimony that she was no longer using alcohol. The court found that Schaeffer's false allegations of domestic violence and decision to involve the children in making such false allegations "suggested] that she [was] less willing than [Mathis] to foster an open, loving and frequent relationship between the boys and their other parent." The court also found that communication between Schaeffer and Mathis regarding the children was "poor to nonexistent." Based on these findings, the court awarded Mathis sole legal and shared physical custody. Schaeffer appeals, raising eight issues relating to child custody, child support, property distribution, and interim attorney's fees. III. STANDARD OF REVIEW The superior court has broad discretion in child custody determinations, including decisions regarding custody investigations, and its determinations will be set aside only if "the record shows that [the] controlling findings of fact are clearly erroneous or the court abused its discretion." A factual finding is clearly erroneous if "a review of the record leaves the court with a definite and firm conviction that the superior court has made a mistake." An abuse of discretion is found "if the superior court's decision is clearly unreasonable under the totality of the circumstances" or "if the superior court considered improper factors in making its custody determination, failed to consider statutorily mandated factors, or assigned disproportionate weight to particular factors while ignoring others." "[W]hether the court applied the correct standard in a custody determination is a question of law we review de novo." "[W]e do not 'readily second guess a trial court's custody determination' because it is 'the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence.' " Child support awards are reversed "only if the superior court abused its' discretion or applied an incorrect legal standard." Whether the superior court applied the correct legal standard is a question of law, which we review de novo. We review "factual findings regarding a party's income for purposes of calculating child support for clear error." Both factual and legal questions may be involved in characterizing property as separate or marital for purposes of property distribution. Factual questions include "[underlying factual findings as to the parties' intent, actions, and contributions to the marital estate," which we review for clear error. Legal questions include "whether the trial court applied the correct legal rule in exercising its discretion," and we review such questions "de novo using our independent judgment." The superior court's decision about whether to award attorney's fees is reviewed for abuse of discretion. The court's award of attorney's fees will not be reversed unless the decision is "arbitrary, capricious, or manifestly unreasonable." IV. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion By Denying The Request For An Updated Custody Investigation. Under Alaska Civil Rule 90.6(a) "the court may appoint an expert . to investigate custody, access, and visitation issues and provide an independent opinion concerning the child's best interests." The superior court has discretion in deciding whether to appoint a custody investigator and by extension has discretion in déciding whether to order an update to an already-completed custody investigation. The court here denied Schaeffer's request for an' update to the initial custody investigation based on Schaef-fer's failure to "establish[ ] a factual basis . for subjecting the boys to another [court investigator] interview,'' and Schaeffer fails to show that the denial was an abuse of the court's discretion. The reasons Schaeffer provided when moving for the update were that a year and a half had passed since the children were interviewed by the custody investigator, that there, would likely be new information because of intervening events, and that the children had grown and matured and could express themselves better than when their original interviews were conducted. Based on her attorney's affidavit, which accompanied' her motion, she also claimed that the court custody investigator stated he could "have the updated investigation completed approximately three weeks prior to trial." In her brief to this court she reiterates these points. Additionally, Schaeffer cites her own statement from her motion requesting the update, where she wrote that "updated interviews would be greatly meaningful and helpful to the court," but she misattributes that statement as coming from the court custody investigator at the divorce trial. And she claims that the custody investigator testified at trial that it was not unreasonable to update the report, when in fact that statement was from a phone call referenced in the affidavit by Schaeffer's attorney. She argues that under the totality of the circumstances the superior "court could not properly address the children's best interests without the update." Schaeffer fails to recognize that the court hád thé benefit not; only of the already-completed custody investigation but also bf witnesses who could provide more recent information, namely, the witnesses who would testify at trial. In addition to testimony by the custody investigator, the court heard' testimony by Schaeffer; Mathis, and others. And while Schaeffer anticipated that an updated report could be available shortly before the scheduled trial date; any delay in' its preparation would likely have caused the trial to be delayed. The ease had already involved several years of contentious litigation, and further delay was not likely to be in the children's best interests. In light of the circumstances as a whole, the trial court did not abuse its discretion when it declined to order an updated report from the custody investigator. B. The Superior Court Did Not Abuse Its Discretion By Not Explicitly Considering The Children's Custody Preference. When determining custody, the superior court is required to consider the nine factors under AS 26.24.160(c), but it "need not refer to all of [the factors] in explaining its custody decision" and may choose to discuss only those factors it finds relevant to the case. One of the factors at issue in this appeal is "the child's preference if the child is of sufficient age and capacity to form a preference." A well-reasoned preference by a mature teenager can, in some cases, be a deciding factor. But "in cases where a child does not show maturity or there is evidence that the choices were motivated by bad reasons, .the court may choose to disregard the child's preference, or to give it little weight." Schaeffer argues that the superior court erred in not considering the children's custody preference. The January 2013 custody investigation report reported the children's custody preferences but indicated that "[t]he children [were] not quite at the age where their preferences should start to carry some weight" and that "some of the statements they made and the OCS report raise[d] serious questions about whether they [had] been coached and influenced which would make it impossible to try to understand what their' true preferences [were]." Schaeffer argues that the report's mention of the then 8- -and 10-year-old children being too young .for "their preferences . to carry some weight" suggests that the children "may have been able to express a preference by the time of the trial," when they were 10 and il years old, respectively. She does not, however, address the concerns about the children potentially having been coached and influenced, making it impossible to determine their true preferences. The court's Findings of Fact and Conclusions of Law do not mention the children's preferences, but they repeatedly refer to Schaeffer's having encouraged the children to lie to various authorities about their father's conduct, which suggests legitimate concern by the court about the mother's influence on the children. Given these findings and the children's young ages, we hold that the court did not abuse its discretion by failing to explicitly, discuss the children's preferences. C. The Superior Court Did Not Clearly Err In Its Findings Regarding The Parents' Capability And Desire To Meet The Children's Needs And Of The Love And Affection Existing Between The Parents And The Children, Under AS 25.24.150(e)(2) and (4) the court must consider the parents' capability and desire to meet the children's needs and the love and affection between the parents and the children when determining custody, The court found that both parents'were capable of meeting the children's needs but that Mathis was more motivated than Schaeffer to focus on the children's needs. According to the court, Schaeffer's decisions to involve the children in the divorce by encouraging them to lie on multiple occasions to various authorities about their father's conduct and by coaching them in an' attempt to justify Schaeffer's alcohol consumption "suggest that she is more focused on her own needs than the children's." Schaeffer argues that this information "was based only on fourth hand reports from other agencies, and such summaries of summaries are notoriously liable to error in the retelling." Contrary to this argument, the information about the children possibly having been coached is supported by trial testimony by the custody investigator based on his in-person interviews with the children, and the court did not clearly err in its findings about the children having been coached and encouraged to lie. The court also noted that Schaeffer twice chose to take personal vacations instead of spending her custodial time with the children and that her "work commitments sometimes have interfered with her parenting responsibilities over several days." Schaeffer claims that the finding about her vacations "is eon- tradicted by facts in the record demonstrating that Schaeffer's toavel was planned before changes in the custody schedule." The record shows she testified that she purchased tickets for her December 2013 Hawaii vacation before changes in the custody schedule, but it also shows Mathis testified that Schaeffer "knew that she had custody" during her April 2013 Hawaii vacation, and Schaeffer's testimony about her April vacation does not contradict that. She ultimately testified that her choice to forgo some of her custody time for her vacation did not mean that she loved the children less. In light of the record, it was not clear error for the superior court to find that Schaeffer "[t]wice . elected to take a personal vacation rather than spend her custodial time with the children." The court also did not clearly err in relying on these findings when making the finding that Mathis was more able and motivated to meet the children's needs. As to the love and affection between the parents and the children, although the superior court decision did not separately analyze this custody factor, it is clear from the record that both parents agree that both of them love and are loved by the children. The court did not clearly err in not explicitly mentioning a factor that plainly favored neither parent, nor in taking its factual finding that Mathis was more motivated than Schaeffer to focus on the children's needs into account in its best interests determination. D. The Superior Court Did Not Clearly Err In Discounting Schaeffer's Evidence Of Domestic Violence. Schaeffer argues that the superior court clearly erred by discounting evidence of domestic violence that would toigger the presumption in AS 25.24.150(g). Contrary to Schaeffer's claim that the "court did not make findings regarding Schaeffer's allegations and sworn testimony regarding Mathis'[s] history of domestic violence," the court specifically found that "all of [Schaeffer's] allegations that [Mathis] was physically or emotionally abusive [were] not credible." The court also indicated that it shared the custody investigator's "serious concerns that [Schaeffer] had instructed [one of the children] to lie about domestic violence in the home." Because the court's factual finding regarding the credibility of Schaeffer's allegations is 'Tiased primarily on oral testimony," it merits "particular deference." And Schaeffer has pointed to nothing in the record that shows this finding to be clearly erroneous. Thus, the court did not clearly err in discounting Schaeffer's evidence of domestic violence. E. The Superior Court Did Not Plainly Err In Determining Child Support Without Certain Supporting Documentation. The superior court ordered Mathis to "provide to the court, in the form of a motion, his calculations for child support" and provided that "[Schaeffer] shall have the normal time allowed under [Alaska] Civil Rule 77 to object to [Mathis's] interim child support calculations." Mathis filed proposed child support orders, including supporting documentation and calculations, and Schaeffer did not file an opposition. The court issued its interim child support order on December 7, 2015. Schaeffer filed a motion for reconsideration, raising for the first time her argument that Mathis did not follow Civil Rule 90.3(a)(1)(A) and (B) because he allegedly "deducted almost twice the amount allowed by the rule for his retirement contributions" and "provided no indication why his deductions would be mandatory beyond the 7.5% allowed under the Rule." And not until her reply brief did Schaeffer argue that there was "no way to determine how much of [Mathis's] payroll deductions are for . optional plans" as opposed to mandatory pension deductions. (Emphasis in original.) She argued that "[i]t would be unusual for a pension to take 15% of gross pay," that the "pension deducts $1.50 for every hour worked," and that Mathis's documentation did "not provide the information required by Civil Rule 90.3." The court denied Schaeffer's motion for reconsideration, finding that Mathis's "employer-with held retirement contributions appear to be mandatory, not voluntary, so the 7.5% cap is inapplicable." Schaeffer argues that her challenge to the child support orders based on the classification of retirement contributions "is reviewable as legal error even though it was first raised on reconsideration." Because "[a]n issue raised for the first time in a motion for reconsideration is not timely," Schaeffer's argument about the retirement contributions is subject to plain error review. The superior court's finding that the contributions were mandatory does not constitute plain error because it had an eviden-tiary basis, which included a letter from Mathis's employer stating that "[t]he employee contributions to the retirement plan are required by this collective bargaining agreement and are not optional." F. The Student Loans Determination Was Clearly Erroneous. The superior court "deeline[d] to recognize [Schaeffer's] student loans as marital debt," reasoning that (a) [Schaeffer] failed to present any documentation as to the debts at trial; (b) [Mathis] testified credibly that [Schaeffer] told him the debts were federally subsidized and would not have to be repaid; and (c) [Schaeffer] failed to demonstrate that she completed any course of study for which the loans were taken out and the marital community was not, therefore, likely to benefit from the debts incurred. Schaeffer argues that "the student loans' existence and value were not disputed facts," that the loans should have been equitably divided, and that whether she earned her degree during the marriage was irrelevant. It was clear error for the court to find that Schaeffer's students loans were not marital debt. It is undisputed that the student loans were incurred during the marriage. Student loans, like other loans incurred during a marriage, are presumptively marital debt, and "the party claiming otherwise must show that the parties intended it to be separate." Mathis has made no such showing, instead erroneously arguing that Schaeffer had to prove that they intended the debt to be marital. There appears to be no "evidence that [Schaeffer] incurred these debts as part of an agreement that she begin this education at her expense in anticipation of divorce," and therefore "the timing of the loans and the circumstances made these debts subject to an equitable division." The first reason the court identified for not recognizing the student loans as marital debt is the lack of documentation. However, the record shows that Schaeffer may have submitted documentation: a November 2014 "updated version of the Plaintiffs spreadsheet" says "copy of documentation of specific amount of outstanding [student] loan attached," but the attachment is not in the record. The loans were also listed on Schaef-fer's financial declaration, and Schaeffer's proposed marital property division table included entries and amounts for "Federal Student Loans," "AK Student Loans," and "Art Institute Loan." In Stanhope v. Stanhope, we held that "[t]he superior court's conclusion that there was insufficient evidence to prove a marital debt [was] not clearly erroneous" where "the only evidence 'of amounts was the numbers entered on . asset sheets prepared by [one party's] attorney." That holding was also based on there being insufficient evidence to prove "the cjritieal question of whether [the debt] had been 'incurred during the marriage,' " In this case, -however, it is-undisputed that the student loans were incurred during the marriage. The second reason- the court identified for not recognizing the student loans as marital is that "[Mathis] testified credibly that [Schaeffer] told him the debts were federally subsidized and would not have to be repaid." However, Mathis conceded- that the student loans either were loans 'or, if they were grants, the terms "to get the grants forgiven" had not been complied with; and they needed to be-repaid. The third reason the court identified for not recognizing the student loans as marital is that "[Schaeffer] failed to demonstrate that she completed any course of study for which the loans were taken out and the. marital community was not, therefore, likely to benefit from the debts incurred." Under different circumstances, this rationale might relate to the issue of the parties' intent about whether the debt should be marital or separate, since it touches on whether the marital community was likely to benefit from the student loans. However, as already indicated, the presumption that the student loans were marital has not been overcome by a showing of intent to the contrary. Thus, it was clear error for the court not to recognize the student loans as marital debt. G. The Superior Court Did Not Clearly Err In Determining There Was No Dispute Regarding The Distribution Of Personal Property. •Schaeffer argues that the superior court clearly erred in determining that there was "no dispute as to distribution of personal property" and that "[t]he parties ha[d] accomplished this task on their own." She claims that she left the marital 'home "with only an overnight bag, and has not been able to recover her remaining personal possessions." In support of this assertion she cites only to a single page of the transcript of the April 9, 2012 proceeding, where she had testified that the only possession she had "out of the house" was her overnight bag. But later in that same proceeding the court indicated that it would issue a limited writ of assistance for Schaeffer to retrieve her belongings, allowing her "a trip to the residence accompanied by law enforcement to recover undisputed personal items, clothing, or any other items." Schaeffer's attorney then requested Schaeffer's "clothes, personal -belongings, books." And during the' final hearing in September 2014, Mathis indicated that Schaeffer could have whatever personal property she wanted out of the house "if she's reasonable." So it appears that she had the opportunity to retrieve the personal possessions that she wanted. Furthermore, she does not -identify any property that- Mathis has that she wants. In light of this record the superior court's findings regarding the personal property distribution are not clearly erroneous. H. The Superior Court Did Not Abuse Its Discretion When Determining The Need For Interim Attorney's Fees. Schaeffer argues that it was an abuse of discretion for the superior court not to evaluate the parties' relative economic situations when -it denied her motion for interim attorney's fees and that "[t]he superior court should have revived that motion sua sponte upon the termination of Schaeffer's pro. bono legal representation." In May 2012 Schaeffer, representing herself, moved for interim attorney's fees, but by the time a hearing was held addressing her motion she had obtained pro bono legal representation -through the Native Justice Center. Her attorney told the superior court that "after this point the attorney's fees issue should not be an issue ,.. unless -there's a specific issue or a motion." Schaeffer never renewed her motion for attorney's fees even after later becoming unrepresented again. Thus, Schaeffer expressly abandoned her claim for interim attorney's fees before the superior court, and the superior court did not abuse its discretion in denying her motion. Nor . did the court abuse its discretion in failing to sua sponte revive the motion after Schaeffer became unrepresented because she did not file a later motion despite her attorney having indicated that it would be an issue only if there were a specific motion. y. CONCLUSION We REVERSE the superior court's property decision regarding the student loan debt and REMAND for further proceedings. Depending on its determination regarding the loan debt, the court may need to adjust its equitable distribution of marital property and debt. In all other respects we AFFIRM the superior court's decisions. . Schaeffer's last name during the marriage was : Schaeffer-Mathis but has since been restored to Schaeffer. .Under AS 25.24.150(g) "[t]here is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent,.a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child." A history of domestic violence is found where "during one incident of domestic violence, the parent caused serious physical injury," or where "the court finds that the parent has engaged in more than one incident of domestic violence." AS 25.24.150(h). The court did not address the fact that Judge Kristiansen had earlier found that Schaeffer had committed "multiple acts of domestic violence" against Mathis. Mathis does not cross-appeal this issue, so we express no opinion on Judge White's finding that there was only one act of domestic violence and that the presumption did not apply. . Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997) (citing Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994)). . Meier v. Cloud, 34 P.3d. 1274, 1277 (Alaska 2001) ("[T]he desirability of a [custody] report is an issue for the trial court to decide as a matter of discretion on a case-by-case basis." (citing Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000))); Pearson, 5 P.3d at 242 ("[T]he judge has discretion whether or not to appoint a custody investigator...." (citing Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976))). . Borchgrevink, 941 P.2d at 134 (citing Evans, 869 P.2d at 479); see also Michele M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008) (quoting Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000)). . Borchgrevink, 941 P.2d at 134 (citing Money v. Money, 852 P.2d 1158, 1161 (Alaska 1993)); see also Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014) (quoting John v. Baker, 30 P.3d 68, 71 (Alaska 2001)). . Meier, 34 P.3d at 1277 (citing Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)). . Borchgrevink, 941 P.2d at 134 (citing McDanold v. McDonald, 718 P.2d 467, 468 (Alaska 1986)); see also Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002) (citing Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982)). . Osterkamp v. Stiles, 235 P.3d 178, 184 (Alaska 2010) (quoting Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)). . Michele M., 177 P.3d at 834 (first quoting Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993); then quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)); see also Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) ("We give 'particular deference' to the trial court's factual findings when they are based primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence." (quoting In're Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001))). . Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003) (citing Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001)). . Id. (citing Beaudoin, 24 P.3d at 526). . Limeres v. Limeres, 320 P.3d 291, 295 (Alaska 2014) (citing Koller, 71 P.3d at 804). . Beals v. Beals, 303 P.3d 453, 459 (Alaska 2013) (quoting Odom v. Odom, 141 P.3d 324, 330 (Alaska 2006)). . Id. at 459 (citing Odom, 141 P.3d at 330). . Id. (quoting Hanson v, Hanson, 125 P.3d 299, 304 (Alaska 2005)). . Beal v. Beal, 88 P.3d 104, 111 (Alaska 2004) (quoting Edelman v. Edelman, 61 P.3d 1, 4 (Alaska 2002)). . Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (quoting Sloane v. Sloane, 18 P.3d 60, 63-64 (Alaska 2001)). . See Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (citing Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976)). . The attorney's affidavit actually states' that the attorney asked whether it would be "possible to complete this update a couple of weeks prior to trial" and that the custody investigator responded that it was possible but that, "he would need the court order as soon as possible" in order to complete the update by then. . . See Ebertz, 113 P.3d at 647. C'[W]e' have previously recognized that custody investigators are simply expert witnesses and that their recom'mendations should be evaluated on a case-by-case basis, in the same manner as testimony presented by other witnesses."). . See Rosenblum v. Perales, 303 P.3d 500, 504 (Alaska 2013) (alteration in original) (quoting Park v. Park, 986 P.2d 205, 207 (Alaska 1999)). . AS 25.24.150(c)(3). . See Michele M. v. Richard R., 177 P.3d 830, 833, 838 (Alaska 2008) (citing Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000)). . Id.; see also Jenkins v. Handel, 10 P.3d 586, 590 (Alaska 2000) (concluding that the superior court did not give too little weight to the preference of a fifteen-year-old and a thirteen-year-old where the court found that "their preferences, and the reasoning behind them, evidenced a great need for parental supervision and were outweighed by their need for . 'substantial guidance'"). .The older child turned 12 before the final day of the trial. . Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (quoting In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)). . See Alaska R. Civ. P. 90.3(a)(1)(B). . Stadnicky v. Southpark Terrace Homeowner's Ass'n, 939 P.2d 403, 405 (Alaska 1997) (citing Miller v. Miller, 890 P.2d 574, 576 n.2 (Alaska 1995)). . D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) ("Plain error exists 'where an obvious mistake has been made which creates a high likelihood that injustice has resulted.' " (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000))). . Schaeffer seeks to raise additional issues regarding the child support calculations that she did not raise until her supplemental brief to this court. We see no plain error in the superior court's failure to consider those issues, and we do not consider them here. Rodvik v. Rodvik, 151 P.3d 338, 345 (Alaska 2006) ("[A]s a general rule, we will not consider arguments for the first time on appeal." (quoting Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001))). . Richter v. Richter, 330 P.3d 934, 938 (Alaska 2014) (citing Stanhope v. Stanhope, 306 P.3d 1282, 1290 (Alaska 2013)). . McDougall v. Lumpkin, 11 P.3d 990, 994 (Alaska 2000). . 306 P.3d 1282, 1290 (Alaska 2013). . Id.

12345727

Loren J. LARSON Jr., Petitioner, v. STATE of Alaska, Respondent

Larson v. State

2017-11-09

Court of Appeals No. A-12725

520

523

407 P.3d 520

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 Hanley, District Court Judge.

Loren J. LARSON Jr., Petitioner, v. STATE of Alaska, Respondent.

Loren J. LARSON Jr., Petitioner, v. STATE of Alaska, Respondent. Court of Appeals No. A-12725 Court of Appeals of Alaska. November 9, 2017 Loren J. Larson Jr., in propria persona, Wasilla, for the Appellant. -Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Sitting' by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

1415

8747

OPINION Judge MANNHEIMER. This case arises from an original application for relief that was filed last year by Loren J. Larson Jr. In November 2016,. this Court issued an order denying Larson's original application, and Larson now seeks rehearing of our November 2016 decision. When this Court denied Larson's original application for relief, we did so in an unpublished order. Nevertheless, we have decided to formally publish our reasons for allowing Larson to file his petition for rehearing, because our decision involves an interpretation of Alaska Appellate Rule 404(f). Rule 404(f) declares that a litigant may not file "a petition for rehearing of the denial of an original application". As we explain in this opinion, despite the wording of this rule, we conclude that Larson is entitled to seek rehearing of our decision denying his original application for relief. . -However, the remainder of our decision on rehearing — ie., our analysis of Larson's specific arguments on rehearing — will be of little interest to anyone other, than Larson and. the State of Alaska, so we will answer Larson's arguments in an unpublished order, The procedural background of this litigation Last year, Loren J. Larson filed the current appellate action — an original application for relief under Alaska Appellate Rule 404. In this original application, Larson asked this Court to re-open the proceedings in one of his earlier appeals: Larson v. State, File, No. A-11836 — an appeal that we decided in January 2016. _ We denied Larson's original application for relief in a five-page order issued on November 21, 2016. Larson now seeks rehearing of that November 21st decision., Why Larson is. entitled to seek rehearing of our decision denying his -original application for relief Larson's right to seek rehearing of our decision is seemingly cast in doubt by Alaska Appellate Rule 404(f), which declares that "a petition for rehearing of the denial of an original application may not be filed." Although this rule appears to prohibit a party from seeking reconsideration of amy order denying an original application,- we conclude (for reasons we are about to explain) that Appellate Rule 404(f) applies only to orders that deny an original application without reaching the merits of the petitioner's claims — and that the rule does not apply in cases where the appellate court issues a decision on the merits of the petitioner's claim, but denies relief. Original applications for relief are requests for an appellate court to exercise its power of discretionary review in cases where the party has no right of appeal and no right to petition for review' under Appellate Rule 402. Procedurally, original applications are handled very much like petitions for review under Appellate Rule 402 — because, in both instances, a party is asking the appellate court to exercise its power of discretionary review. The appellate court considers the petition or application (and any opposition), and then the court decides whether it will (1) deny the petition or application without reaching the merits of the petitioner's claim or, instead, (2) grant the petition or application, in the limited sense "of agreeing to resolve the merits of the petitioner's claim— but without any guarantee that the court's ultimate resolution of the claim will favor the petitioner. If the appellate court decides to grant a petition for review or an original application, the court will often call for fuller briefing of the petitioner's claim. But there are instances where the court "grants" the petition or application (in the sense of agreeing to reach the merits of the petitioner's claim) and then, without further briefing, issues an order resolving the merits of the case. In those circumstances, even when the court's order resolves the case by denying the relief that the petitioner has requested, the petition or application has still technically been "granted", in the sense that the court has reached the merits of the petitioner's claim. Like Appellate Rule 404(f) (which deals with original applications), there is a provision of Appellate Rule 403 — specifically, Rule 403(g) — which declares that when an appellate court denies a petition for review, "a petition for rehearing of the denial of [the] petition for review may not be filed". But Appellate Rule 403(g) has not been construed to prohibit petitions for rehearing in cases where an appellate court grants the petition, reaches the merits of the petitioner's case, and denies relief. Rather, the 'Alaska Supreme Court has allowed rehearing in such cases — ie., cases where a petition for review was granted but later, upon consideration of the merits of the case, the court denied the relief that the petitioner was requesting. For example, in State v. Glass, 583 P.2d 872 (Alaska 1978), the supreme court granted the State's petition for review of a suppression ruling issued by the trial court, but when the supreme court reached the merits of the case, the supreme court affirmed the trial court's ruling — ie., the supreme court issued a decision denying the relief that the State had requested. The State then sought rehearing. Instead of declaring that the State was barred from seeking rehearing, the supreme court considered the State's arguments and issued a formal opinion on rehearing: State v. Glass, 596 P.2d 10 (Alaska 1979). Thus, the supreme court granted the State's petition for rehearing even though, in its first opinion, the court had denied the State's request for relief. We conclude that Appellate Rule 404(f) should be .construed the same way. Appellate Rule 404(f) declares that no party may seek rehearing "of the denial of an original application". We interpret this rule to mean that when a party files an original application for relief and the appellate court votes to deny the application without reaching the merits of the party's claim, the parties are prohibited from seeking rehearing of the court's decision. But when the appellate court takes the case and resolves the merits of the petitioner's claim by denying relief, the petitioner (or the respondent, for that matter) can seek rehearing of the appellate court's decision on the merits. We reach this conclusion for two reasons. First, as just explained, the Alaska Supreme Court has allowed petitions for rehearing in analogous circumstances in petition for review cases, even though Appellate Rule 403(g) contains a corresponding prohibition on petitions for rehearing "of the denial of a petition for review". Second, when an appellate court resolves the merits of a legal controversy in an opinion or other final order, there appears to be no good reason to insulate the court's decision from rehearing simply because the case came to 'the court as a petition for review or as an original application for relief, rather than as an appeal. Having declared the law and resolved the merits of the controversy, the appellate court has the same interest in making sure that its decision is not based on a material misunderstanding of the facts or tire law. The remaining question in Larson's case, then, is whether this Court's order of November 2lst — our "Order Denying Original Application" — was a decision on the merits of Larson's claim. There is little doubt that it was. Our order is five pages long; it contains both a detailed description of the relevant procedural history of Larson's case and an explanation of why this Court concluded that Larson was not entitled to the relief that he was seeking. For these reasons, we conclude that Larson is entitled to seek rehearing of this Court's order of November 21, 2016, denying his original application for relief. The merits of Larson's arguments on rehearing As we explained at the beginning of this opinion, Larson's arguments on rehearing, and our analysis of those arguments, will be of little interest to anyone other than Larson and the State of Alaska. We have therefore decided to answer Larson's arguments in an unpublished order. . See Larson v. State, unpublished, 2016 WL 191987 (Alaska App. 2016). . See Appellate Rule 404(a)(1). . See Appellate Rules 403© and 404(e).

12345626

BRUCE H., Appellant, v. JENNIFER L., Appellee

Bruce H. v. Jennifer L.

2017-10-06

Supreme Court No. S-16360

432

442

407 P.3d 432

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.

BRUCE H., Appellant, v. JENNIFER L., Appellee.

BRUCE H., Appellant, v. JENNIFER L., Appellee. Supreme Court No. S-16360 Supreme Court of Alaska. October 6, 2017 Justin Eschbacher, Law Offices of G.R. Eschbacher, Anchorage, for Appellant. Kris 0. Jensen, Law Offices of Dan Allan & Associates, Anchorage, for Appellee. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

5334

34337

OPINION WINFREE, Justice. I, INTRODUCTION Following a divorce á mother and father reached a custody settlement giving the mother sole legal and primary physical custody of their son; the father had visitation at the mother's discretion. After the father later requested joint legal and shared physical custody, the mother sought authorization to relocate with the child out of state. At a combined hearing on both issues the father presented evidence that the mother may have committed domestic violence against a former boyfriend. The superior court denied the father's custody modification request for failure to demonstrate a substantial change in circumstances. The court granted the mother authorization to move, finding her reasons for relocating legitimate and determining' that the child's best interests were served by staying with the mother. Under the court's subsequent order the mother maintained sole legal and primary physical custody, with limited visitation by the father. The father appeals the court's denial of his custody modification motion, determination that the mother's move was legitimate, best interests determination, and visitation award. We affirm the determination that the mother's move was for legitimate purposes; however, because we vacate the underlying finding that no domestic violence occurred between the mother and her former boyfriend and remand that issue for renewed consideration, we also must remand the ultimate custody decision for renewed consideration. The visitation decision necessarily follows the custody decision and should include findings sufficient for appellate review. II. FACTS AND PROCEEDINGS A. Facts " Jennifer L. and Bruce H. married in Kentucky in 2010. Their only child was born in September of that year. Shortly after their son's birth the family moved to Unalaska. When Jennifer and Bruce divorced in 2012 they agreed Jennifer would have primary physical and sole legal custody of their son. In the years immediately following the divorce, the son was in Jennifer's care full time; Bruce visited only sporadically. But for at least two years prior to trial, the son stayed overnight with Bruce — who lived with his girlfriend and their daughter, the son's half-sister — about three nights per week. B. Proceedings In February 2016, when their son was five years old, Bruce requested a modification to joint legal and shared physical custody. In an accompanying affidavit Bruce accused Jennifer of exposing their son to tumultuous and violent relationships and failing to provide him proper care. While Bruce's motion was pending, Jennifer indicated that she intended to move with their son to Kentucky to live with her mother and that she already had arranged their transportation. Jennifer then filed a motion seeking the court's authorization for her relocation with the child to Kentucky. The superior court ordered a joint eviden-tiary hearing on the motions. Bruce testified about his stable family life and his relation ship with his son, and he called several wit; nesses who attested to his parenting abilities. Jennifer testified about her motives for moving to Kentucky, including her resignation from her job in Unalaska, a difficult relationship breakup, a desire to be near family, and the opportunity to further her education in Kentucky. Jennifer said that she had been planning to move for some time and had not realized she needed court permission to do so. Jennifer, Bruce, and Jennifer's mother testified that in Kentucky Jennifer and the child would be near Jennifer's family members, as well as Bruce's other son and Bruce's parents in Tennessee. Jennifer and her mother described the area and nearby attractions, such as cities, parks, and museums. Jennifer testified that she had supported visitation between Bruce and their son in the past and that she intended to continue supporting their relationship after the move. Bruce called Jennifer's ex-boyfriend, Jose L., to testify about Jennifer's conduct as a parent, her history of drinking, and an allegation that she committed domestic violence against Jose. Jose testified that during an argument "she tried to hit me, and I threw her to the ground and held heruntil the cops came." Jose stated that he held Jennifer down by her neck. He stated that the incident probably occurred in 2013, but he was not certain. Jose testified that Jennifer was "fairly intoxicated" at the time, that they argued often, and that there may have been other violent episodes. Jose admitted that Jennifer's attempt to hit him could be seen as self-defense. Jennifer also testified about the incident, saying that she did not remember what exactly caused their argument, but "I do know that [Jose] shoved me, trying to make me leave," and "the argument progressed from there and . [he] ended up holding me down on the ground, and when I stood up is when I swung at him." Neither witness testified that Jennifer actually hit Jose. They disagreed only about timing, with Jose testifying that Jennifer tried to hit him before he pinned her to the ground and Jennifer testifying that she tried to hit him. when she stood up afterward. . . After the hearing the superior court issued a modified child support and custody order and an accompanying order addressing both parties' arguments. The court denied Bruce's motion to' modify custody, ruling that he had failed to show a substantial change in circumstances. Responding to Bruce's argument that the alleged domestic violence constituted a substantial change in • circumstances, the court stated that "there is no time frame associated with this alleged incident and no testimony in support of the allegation, nor is there a report that this incident resulted in judicial proceedings or has occurred on multiple occasions." But because Jennifer was planning to relocate with their son, the court determined she had alleged a substantial change in circumstances. The court found Jennifer's motives for moving to Kentucky— employment, family, and educational and extracurricular opportunities- for the child— were legitimate. The court next addressed whether physical custody with Bruce in Unalaska or with Jennifer in Kentucky would better serve then-son's interests. Analyzing each best interests factor individually, the court found that th§ stability factor slightly favored Jennifer, because, although moving away from the son's father and childhood home would be disruptive, separating the child from Jennifer, his "primary parent," could be more harmful. The- court addressed the domestic violence incident again in the context of the best interests factors, concluding that it "does not rise to the level of domestic violence as defined by AS 25.24.150(g)." After weighing all the factors, the court determined that Jennifer should have primary physical custody; she also retained sole legal custody without comment by the court. The court awarded Bruce visitation consisting of one 30-minute phone call per week, a two-week summer visit, and alternating Christmas and spring break visits. • Bruce appeals a -number of the court's decisions, including its finding that Jennifer's move was legitimate; its best interests determination; its implicit legal custody award; and its visitation order. III. STANDARD OF REVIEW "Whether the court's findings on domestic violence are supported by the record is a question of fact which we review for clear error." "Whether the superior court applied the correct legal standard 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.'" The superior court has broad discretion in determining "whether, following an eviden-tiary hearing, the moving party has proven a substantial change in circumstances, meaning one that affects tile child's welfare." "Trial courts have broad -discretion in determining whether a proposed child-custody modification is in the child's best interests. We will set aside the, superior court's best interests determination only if the trial court abused its discretion or if the fact' findings on which the determination is based are clearly erroneous." A factual finding is erroneous if, "based on a review of the entire record, the finding leaves us with a definite and firm conviction that a mistake has been made." We review visitation awards for abuse of discretion. IV. DISCUSSION A. The Superior Court's Denial Of Bruce's Modification Motion Was Based On Clearly Erroneous Factual Findings And Erroneous Legal Conclusions. A parent seeking to modify custody bears the burden of showing a substantial change in circumstances sufficient' to justify modifying custody. A crime of domestic violence is a substantial change of circumstances ás a matter of law, and for physical custody purposes an out-of-stat¿ move is a substantial change of circumstances as a matter of law. In denying Bruce's motion to modify" custody, the superior court found, "[rjegarding the accusation that [Jennifer] hit her boyfriend, there is no time frame associated with this alleged incident and no testimony in support of the allegation." Having found no evidence of domestic violence and no other substantial change, the court denied Bruce's motion to modify legal and physical custody. - The superior court's discussion of domestic violence was based on clearly erroneous factual findings and erroneous legal conclusions. The court stated that there was no time frame associated with the alleged incident, but both Jose and Jennifer testified that the incident probably occurred in 2013. The court found there was no testimony supporting the allegation, but it was the principal issue in Jose's testimony, and Jennifer also testified about it. The court also noted there was "no report that .this incident resulted in judicial proceedings or has occurred on multiple occasions," but neither separate judicial proceedings nor multiple incidents of domestic violence are required to find a substantial change of circumstances when there is a finding of a crime of domestic violence. We must therefore vacate these erroneous determinations. The posture of this case requires us to remand for the superior court to reconsider Bruce's modification motion. The court determined that Jennifer's move amounted to a substantial change in circumstances and proceeded to the best interests analysis; in some circumstances that would render moot a competing modification motion alleging a different substantial change in circumstances. But a move "is not necessarily a substantial change for legal custody purposes." Because only Bruce sought to modify legal custody, when -the court denied Bruce's motion and considered only Jennifer's it did not address whether joint legal custody was in the child's best interests. It is therefore necessary to remand for the court to revisit its domestic violence findings and reconsider Bruce's modification motion. We note that the superior court should separately consider Bruce's stated reasons for modifying legal custody when reviewing his substantial change of circumstances allegations. B. The Superior Court's Finding That Jennifer's Move Was Legitimate Was Not Clearly Erroneous. In relocation cases the superior court must assess first the legitimacy of the move and then the child's best interests under AS 25.24.150(c). If the reasons for moving are legitimate, then "there is no presumption favoring either, parent when the court considers the child's best interests," In'making its best interests determination, "the superior court must assume that the legitimate move will take place and consider the consequences that the move will have on the child — both positive and negative." Bruce first challenges the legitimacy of Jennifer's move. For a move to be legitimate, the moving parent must show that the move "is not primarily motivated by a desire to make visitation more difficult." We do not require the moving parent to prove a compelling reason to move so long as the primary motivation is not limiting visitation with the other parent. When a legitimacy finding is based on a court's assessment of a. parent's credibility, we "give it particular deference." Here the superior court determined that Jennifer's move was legitimate, noting that she was moving closer to family, seeking employment, and providing the child new educational and extracurricular opportunities. The court found that Jennifer's move was not motivated by a desire to "prevent [Bruce] from interacting with his child." Bruce calls into question the facts cited by the superior court as reasons for Jennifer's move, but he points to no evidence that Jennifer's primary intent was to limit his time with their son. Bruce argues that Jennifer's desire to be near family "was simply a matter of convenience" and that Jennifer "was not entirely sure whether she would be employed" in Kentucky. He refutes the court's finding that the educational opportunities and family support for their son partly motivated the move. But the court's findings were based largely on its assessment of Jennifer's credibility — which we view with "particular deference" — when she stated that she "wishe[d] to move in order to be closer to her family and to seek better employment prospects in Kentucky." Even assuming Bruce's assertions are correct, they do not show that Jennifer's primary motive was to limit Bruce's visitation. Bruce also points to the timing of Jennifer's relocation motion as evidence of a motive to limit his custody. He argues that Jennifer made plans to move, including purchasing plane tickets, without informing him or the court and that her plans indicated an illegitimate motive. The superior court acknowledged that Bruce and Jennifer "disagree[d] about [Jennifer's] moving timeline." But the court contrasted Jennifer's conduct with that in Hamilton v. Hamilton, where the moving parent attempted to "abscond" with the children without notice to the other parent. Unlike in that case, where the moving parent made plans to move with the children and attempted to deceive the other parent about those plans, here Jennifer testified that she began making moving arrangements before realizing she needed the court's permission to relocate with the child. It was not error for the court to rely on Jennifer's testimony and decline to hold her travel arrangements against her in its legitimacy determination. Bruce also notes that Jennifer filed her motion to relocate shortly after Bruce sought increased custody of them son, a fact the court recognized in its findings. But questionable timing alone ordinarily does not make a move illegitimate, especially when the moving parent has a history of supporting a child's relationship with the other parent. In Judd v. Burns, for instance, we affirmed the finding of a legitimate move despite the allegation that the moving parent had "a pattern of moving to avoid sharing custody." We explained that although the mother had previously moved out of state with an older child, she had made efforts to support the relationship between the older child and the child's father after that move. Here the court found that Bruce "ha[d] not presented credible evidence that [Jennifer] ha[d] prevented him from visiting with [their son]." Instead, the record shows that Jennifer supported Bruce's relationship with their son. Bruce has not shown that the court's finding of a legitimate move was clearly erroneous. C. The Superior Court's Best Interests Determination Was Partly Based On Its Erroneous Domestic Violence Findings. 1. Overview Once a parent moving out of state makes a threshold showing that the proposed move is legitimate, the court must consider the nine factors listed in AS 25.24.150(c) to "determine custody in accordance with the best interests of the child." In its best interests analysis "the court may consider only those facts that directly affect the well- being of the child." Here the court analyzed each factor listed in AS 25.24.150(c) and determined that eight of the best interests factors did not favor either parent. It found that the stability factor, "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity," slightly favored Jennifer. The court accordingly awarded Jennifer primary physical custody. Bruce disputes the court's factual findings pertaining to four of the statutory factors: (2) the capability and desire of each parent to meet [the child's] needs; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents; (8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child .: ,[ ] 2. Domestic violence We begin with the superior court's domestic violence findings under AS 25.24.150(c)(7); those findings resemble its description of the domestic violence allegations in its "substan-tíal change in circumstances" analysis. The court stated, in full: Regarding the accusation that [Jennifer] hit her boyfriend, there is no time frame associated with this alleged incident and no testimony in support of the allegation, nor is there a report that this incident resulted in judicial proceedings or has occurred on multiple occasions. This does not rise to the level of domestic violence as defined by AS 25.24.150(g). As we explained above, the superior court's findings that there was no time frame and no testimony in support of the alleged incident are clearly erroneous. The court's legal analysis under this factor is also flawed. Neither the best interests statute nor our precedent requires evidence of either separate judicial proceedings or multiple instances of domestic violence to make domestic violence findings in a custody dispute. And the court improperly relied on AS 25.24.150(g) to define domestic violence. That statute contains no such definition, instead describing the presumption against awarding custody to a parent with "a history of perpetrating domestic violence." These factual and legal errors require us to reverse the superior court's domestic violence findings and remand for reconsideration of this factor and the best interests determination. 3. Child's needs, stability, and parental substance abuse The superior eourt determined under AS 25.24.150(e)(2) that "both parents have the physical capacity to provide for [the child]'s needs." In making its determination the court found that both Jennifer and Bruce had been able to maintain homes and stable employment. The court found that Jennifer "has been [the ehild]'s primary caretaker since his birth." The court recognized Jennifer had recently lost her job and was "suffering from stress and depression," but nevertheless "has continued to provide for [the child]." Bruce also "had some difficulties in the past controlling his emotions but has since overcome these challenges." Bruce argues that, because of Jennifer's "long-term pattern of instability" — including allegations of substance abuse, domestic violence, and mental health issues — the court's finding óf relative stability on Jennifer's part was clearly erroneous. He also disputes the court's finding that Jennifer was their son's primary caretaker, noting that he and Jennifer shared custody for the previous two to three years. The record supports the superior court's finding that both parents are capable of meeting them son's needs, and Bruce points to no evidence that Jenniferis "pattern of instability" has affected her parenting. The court's finding that Jennifer had been the child's primary caretaker, especially in his early years, was also supported by trial testimony-'that Bruce did not actively participate in their son's upbringing until more recently. The court's findings under AS- 25.24.150(c)(2) are not clearly erroneous. In, determining stability under AS 26.24.150(c)(5), the superior court made the following factual findings: the child "spends a majority of time with his -mother"-; the child's relationship with his half-sister in Unalaska was "balanced with the existence" of a half-brother near his proposed home in Kentucky; and Bruce's allegations about an overdose incident in Jennifer's home were "incredible." The court ultimately determined "it could be far more unsettling for [the child] to change his primary-parent" and found the stability factor favored Jennifer. Bruce disputes each factuál finding underlying the courfe decision and argues that the court erroneously failed to consider geographic stability when making its determination. Brace asserts the court erred in determining that the factor favored Jennifer. The superior court's finding that the child "spends a majority of time with his mother" was not clearly erroneous. Although Bruce points to his and Jennifer's "de facto shared custody agreement," both he and Jennifer testified that Bruce had visitation with the child three nights per week but that before establishing that schedule their son had lived with Jennifer full time. That testimony supports the court's finding that the child spends a majority of his time with his mother. . Bruce argues that the superior court erred by comparing the child's bond with his half-sister in Unalaska to the relationship with his half-brother in Kentucky. Trial testimony showed the child has a loving relationship with both half-siblings; that finding was not clearly erroneous. The superior court also addressed trial testimony regarding a third-party's overdose in Jennifer's home, calling it "an .isolated incident" and noting "[t]here was no indication that [the child] witnessed the incident but he did attend counseling afterward." Based on those findings and "the fact that [Bruce] still appears to only want shared custody," the court deemed Brace's allegations about the overdose incident "incredible." Brace disputes the court's findings about the overdose incident, arguing that, by describing his allegations as "incredible," the court erroneously determined the incident did not occur and held the allegation against Bruce when making its stability determination. But-the court found that the incident occurred. Its use of the word "incredible" appeal's to refer only to Bruce's allegation that the incident reflected poorly on Jennifer's parenting abilities. The court did not hold Bruce's allegations against him; it merely. declined to hold them against Jennifer. The court's findings about the overdose incident were not clearly erroneous. Bruce also argues that superior court failed to adequately consider geographic stability when making its stability determination. We expect the superior court to consider both "geographical continuity" and "relational stability" when making its stability determinations. But "[wje have noted that a 'continuity test centered entirely on the child's geographic stability would always favor placing the child with the non-moving parent,'" Here the court acknowledged that the child "spent most of his life in Unalaska" but also "lived most of his life with his mother." The court therefore did not disregard geographic stability in .making its determination. Bruce finally disputes the superior court's ultimate conclusion that the stability factor favored Jennifer, arguing there "was no evidence to support the trial court's finding that it would be more unsettling to [the child] to remain in Unalaska in his father's household than relocating with [Jennifer] to Kentucky," But the court's determination was supported by its findings that the child had spent the majority of his life in his mother's care. Bruce has not shown the superior court's stability determination under AS 26.24.150(c)(5) was clearly erroneous. The superior court found under AS 26.24.150(c)(8) that Jennifer "may have [had] issues with alcohol," including "drinkfing] alcohol while on antidepressants." The court found that "[w]hile this is concerning, there was no evidence presented to suggest that [Jennifer's] alcohol use has directly affected the emotional or physical well-being of [the child]." The court ordered Jennifer to undergo a substance abuse evaluation. Bruce disputes the court's finding that Jennifer's drinking had no effect on their son, pointing to Jose's testimony that while drunk Jennifer once wanted to leave with the child, and Jose threatened to call the police if she drove. But the record supports the court's finding: Jose testified that Jennifer "made arrangements for a friend to come pick her up" instead of driving. Bruce also points to the court's order that Jennifer undergo an alcohol assessment as evidence her drinking affected their -son. This does not contradict the court's finding that Jennifer's drinking did not affect the child. The court's findings under this factor were not clearly erroneous. We conclude'that the superior court's findings relating to domestic violence were clearly erroneous and based on an incorrect legal analysis, but we find no clear error in the court's other factual findings. We remand for the court to reconsider its domestic violence findings and analysis and to reweigh the best interests factors based on its new determinations. .The court, of course, is free to hear new testimony and to modify its other factual findings if necessary. D. The Superior Court's Limited Visitation Award Was Not Supported By Sufficient Findings. On remand the superior court will be required to revisit its visitation award if its custody decision changes. Even if the custody decision remains the same, the court must revisit its visitation award. We have recognized that "visitation is a 'natural right of the noncustodial parent that may not be taken away absent extraordinary circumstances.'" We accordingly require courts awarding limited visitation to make findings supporting that decision "unless the reasons can be gleaned from the record." Here, despite enjoying visitation with his son for three nights per week for at least two years prior to trial, Brace was awarded visitation consisting of only one 30-minute phone or video call per week, two weeks of summer visitation, and alternating Christmas and spring break vacations. Although the child's Kentucky school schedule, which is year-round, may not permit an extended summer visit, the court did not explain its decision not to award Brace reasonable additional visitation at other times during the year. On the record before us, "we are unable to discern why the trial court awarded such restricted visitation," and the court on remand must "make specific findings explaining the award" and may "expand the visitation award if appropriate." V. CONCLUSION We-VACATE the superior court's domestic violence findings and REMAND for a new consideration of Brace's modification motion, the best interests analysis for physical custody (and legal custody if warranted), and visitation. We AFFIRM the superior court's determination that Jennifer's move to Kentucky was legitimate. We do not retain jurisdiction. . We use initials for privacy protection. . See AS 25.24.150(c)(l)-(9) (enumerating factors to be considered in child custody best interests determinations). . Caroline J. v. Theodore J., 354 P.3d 1085, 1090 (Alaska 2015) (quoting Yelena R. v. George R., 326 P.3d 989, 998 (Alaska 2014)). . Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (quoting McQuade v. McQuade, 901 P.2d 421, 423 n.3 (Alaska 1995)). . Collier v. Harris, 377 P.3d 15, 20 (Alaska 2016) (citing Heather W. v. Rudy R., 274 P.3d 478, 482 (Alaska 2012)). . Rego, 259 P.3d at 452 (citing Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)). . Id. (citing Ebertz, 113 P.3d at 646). . Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska 1987)). . Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014). . AS 25.20.110(c) ("In a proceeding involving the modification of an award for custody of a child or visitation with a child, a finding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances...."). . Judd v. Burns, 397 P.3d 331, 341 (Alaska 2017) ("While an out-of-state move is a substantial change in circumstances for physical custody purposes, it is not necessarily a substantial change for legal custody purposes."). . Alaska Statute 25.90.010 defines domestic violence by reference to AS 18.66.990. The latter definition includes "a crime against the person under AS 11.41," as well as "an attempt to commit the offense." AS 18.66.990(3). Attempted assault in the fourth degree therefore qualifies as a domestic violence crime. See AS 11.41.230(a) ("A person commits the crime of assault in the fourth degree if . by words or conduct that person recklessly places another person in fear of imminent physical injury."); Parks v. Parks, 214 P.3d 295, 300 (Alaska 2009) (holding attempt to commit assault in the fourth degree would fall within meaning of domestic violence). . See AS 25.20.110(c) ("[Ajfinding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances...."). . Judd, 397 P.3d at 341. . Collier v. Harris, 377 P.3d 15, 20 (Alaska 2016) (holding that, at substantial change of circumstances stage, "[t]he concepts of legal and physical custody deserve separate analysis"). . See Rego v. Rego, 259 P.3d 447, 453 (Alaska 2011). . Id. (citing McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995)). . Id. (citing Eniero v. Brekke, 192 P.3d 147, 150 (Alaska 2008); Fardig v. Fardig, 56 P.3d 9, 13 n.12 (Alaska 2002); Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001)). . Id. (citing Moeller-Prokosch; 27 P.3d at 316). . See, e.g., Judd v. Burns, 397 P.3d 331, 336-37 (Alaska 2017) (explaining that "[w]hile vague and aesthetic motives may be less convincing than more easily explained ones, moving to be 'more happy' or. to 'enjoy better weather year-round' may be .sufficient; indeed, the superior court does not need to be able to identify the primary motivation at all as long as it can exclude 'a desire to make visitation 'more difficult' "); Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005) (noting court found "desire, to get away from the State of Alaska" a legitimate reason for moving). . Kristina B. v. Edward B., 329 P.3d 202, 214 (Alaska 2014) (citing Linteres v. Linteres, 320 P.3d 291, 296 (Alaska 2014)). . Id. (citing Limeres, 320 P.3d at 296). . See Judd, 397 P.3d at 336-37. . 42 P.3d 1107, 1114 (Alaska 2002). . See id. . 397 P.3d at 337. . Id. . Rego v. Rego, 259 P.3d 447, 453 (Alaska 2011). . AS 25.24.150(d). . AS 25.24.150(c)(5). . AS 25.24.150(c). . AS 25.24.150(c)(7) (requiring superior court to consider "any evidence of domestic violence . in the proposed custodial household" (emphasis added)); see Veselsky v. Veselsky, 113 P.3d 629, 636 (Alaska 2005) (affirming superior court's best interests determination relying on testimony and statements by parent to counselor about domestic violence); see also Mallory D. v. Malcolm D., 290 P.3d 1194, 1201 (Alaska 2012) (affirming superior court's decision relying on trial testimony to find domestic violence and apply domestic violence presumption). . AS 25.24.150(g). Alaska Statute 25.90.010, and, by reference, AS 18.66.990, define domestic violence, but the superior court cited neither when determining that Jennifer had not committed domestic violence.' .We generally require detailed domestic vio- , lence findings when a party alleges that the domestic violence presumption should apply. See Sarah D. v. John D., 352 P.3d 419, 429-30, 434 (Alaska 2015) (remanding for detailed factual findings about domestic violence allegations that could have triggered presumption); Williams v. Barbee, 243 P.3d 995, 1003-04 (Alaska 2010) (remanding for "express findings" whether alleged domestic violence amounted to history of perpetrating domestic violence). Bruce has made no such claim here or to the superior court. Unlike the domestic violence presumption, the best interests determination involves the superior court's discretion in weighing factors such as evidence of domestic violence. . See Rego v. Rego, 259 P.3d 447, 460-61 (Alaska 2011) ("We have explained that 'instability in relationships [does not] warrant a custody change where the parent's conduct does not adversely affect the child or the . parenting abilities.' " (alterations in original) (quoting S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985))). . Chesser-Witmer v. Chesser, 117 P.3d 711, 719 (Alaska 2005) (quoting Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001)). . Id. (quoting Meier, 34 P.3d at 1279). . Nor was the court required to consider Jennifer's alleged "disruptive relationship history," as Bruce argues, unless that history had an effect on her parenting abilities or the child. Rego, 259 P.3d at 460-61 ("We have explained that 'instability in'relationships [does not] warrant a custody change where the parent's conduct does not adversely affect the child or the ., ' parenting abilities." (alterations in original) (quoting S.N.E, 699 P.2d at 878)). Bruce points to no such effect. . William P. v. Taunya P., 258 P.3d 812, 818-19 (Alaska 2011) (quoting 1 Jeff Atkinson, Modern Child Custody Practice § 5.2 (2d ed. 2010)). . I.J.D. v. D.R.D., 961 P.2d 425, 432 (Alaska 1998) (citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190-91 (Alaska 1987)). . Id. And if the superior court awards Bruce visitation of over 27 consecutive days, it should make findings about whether Bruce is entitled to a visitation credit. See Alaska R. Civ. P. 90.3(a)(3); Reilly v. Northrop, 314 P.3d 1206, 1218 (Alaska 2013).

12340638

STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT & BENEFITS, Appellant, v. Shirley SHEA, Appellee

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

2017-04-21

Supreme Court No. S-15787

524

543

394 P.3d 524

394

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT & BENEFITS, Appellant, v. Shirley SHEA, Appellee.

STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT & BENEFITS, Appellant, v. Shirley SHEA, Appellee. Supreme Court No. S-15787 Supreme Court of Alaska. April 21, 2017 Joan M. Wilkerson, Assistant Attorney General, and Craig W. Richards, Attorney General, Juneau, for Appellant. ■ Joseph A. Kalamarides and Randall S. Ca-vanaugh, Kalamarides & Lambert, Anchorage, for Appellee. Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.

11244

71283

OPINION WINFREE, Justice. I. INTRODUCTION A state employee applied for occupational disability benefits, claiming that prolonged sitting at work aggravated a preexisting medical condition. The Division of Retirement and Benefits denied the claim. An administrative law judge affirmed that decision, determining that employment was not a substantial factor in causing the employee's dis ability. On appeal the superior court reversed the administrative law judge's decision. Because the administrative law judge's decision was supported by substantial evidence, we reverse the superior court's decision and thereby affirm the administrative law judge's decision. II. FACTS AND PROCEEDINGS A. Underlying Facts And Prior Proceedings This case comes to us for a third time. The underlying facts and proceedings relevant to this appeal are fully set forth in Shea II. In brief, Shirley Shea suffers from chronic pain and has been unable to work since 2001. Shea was granted non-occupational disability benefits in March 2003, but was denied occupational disability benefits because the Division of Retirement and Benefits' retained expert, Dr. William Cole, concluded after reviewing Shea's medical record that "[tjhere is not evidence from the record that the pain was caused by her occupation." In response Shea underwent a series of medical exams between August 2003 and August 2005 seeking to determine the connection, if any, between prolonged sitting at her employment and her chronic pain. The Division found the new information unconvincing: In August 2005, at the Division['s] request, Dr. William Cole reviewed all the information in Shea's medical record, including the opinions and medical reports Shea had obtained since Dr. Cole's opinion in March 2003. After considering this information, Dr. Cole maintained his opinion that "there is not a substantial presentation of an argument to support [Shea's] claim that her job activities were [a] significant contributing factor to this condition, no more than the rest of the activities of daily living of her life were." As a result, the Division affirmed its denial of Shea's claim for occupational disability benefits.[ ] Shea appealed this decision to the Office of Administrative hearings, and a hearing was held in March 2006. Both Dr. Michael Smith, whom Shea had seen in 2004 for an opinion on causation, and Dr. Joella Beard, whom Shea had seen in 2001 for a disability impairment rating, testified at the hearing. The Administrative Law Judge (ALJ) found by a preponderance of the evidence that Shea "suffered some form of injury to her ilioinguinal nerve in the course of the 1984 procedure, resulting in long-term unresolved ilioinguinal neuralgia." But he defined her "disabling condition [as] chronic pain syndrome, primarily resulting from the nerve injury in 1984, and referred and secondary pain related to that injury." He also found that the initial trauma from 1984 left Shea "with a vulnerable nerve, which intermittently flared up . as a result of the activities of everyday life, leading eventually to secondary bursitis and referred pain in a variety of areas." He noted that Shea's bursitis, however, "is not disabling, and the chronic pain she suffers has many sources other than her working conditions.... Her claim for disability benefits rests on whether, in light of the record as a whole, her employment was a substantial factor in a complex chronic pain syndrome." The ALJ found that Shea "did not prove by a preponderance of the evidence that her employment was a substantial factor in her disability" and affirmed the Division's denial of Shea's occupational disability claim; Shea appealed to the superioi* court, and it affirmed the ALJ's decision. Shea appealed to this court, and we reversed the superior court's decision upholding the ALJ's decision and remanded for proceedings consistent with our explanation of the appropriate causation standard. B. The ALJ's Decision On Remand The ALJ issued his decision on remand in February 2013. No new evidence was considered, but the ALJ did consider the parties' briefs and our Shea II decision, which authorized the ALJ to "reevaluate the evidence . as he deemfed] necessary," The sole issue again was whether Shea's employment was a substantial factor in causing her disabling pain. The ALJ examined evidence indicating that prolonged sitting at work was a substantial factor in causing Shea's disabling pain. Among this evidence was; "(1) Dr. Smith's opinion [at the hearing] that-prolonged sitting aggravated a physical condition and her pain symptoms, . (2) sitting was painful to her, (3) her job duties involved long periods of sitting, and (4) during the time she worked for the State of Alaska, her pain symptoms increased." The ALJ also considered evidence indicating that Shea's employment was not a substantial factor in her disability: (1) Ms. Shea on multiple occasions prior to becoming disabled reported that her pain was caused by a wide variety of common, every-day activities, including walking, and physical activity in general; (2) .Ms. Shea did not identify sitting as a causal factor until February, 1999, after her symptoms had become highly problematic; (3) Ms. Shea in 1998, and again in 1999, reported no significant or particular aggravating or alleviating factors; (4) Ms. Shea did not herself identify working conditions as. a causal factor until 2003, long after she had ceased working; (5) Dr. Beard's expert medical opinion that prolonged sitting did not permanently aggravate the underlying physical condition; and (6) Dr. Beard's observation that Ms. Shea's pain symptoms could have been a result, in some degree, of psychological factors. The ALJ determined that Shea had proved prolonged periods of sitting at work were a but-for cause of her disability. But the ALJ concluded that reasonable persons would not attach responsibility to the State for Shea's disability because her employment conditions were not a sufficiently "significant and important a cause" of her disability; the ALJ therefore found Shea had not proved that prolonged sitting at work was a substantial factor in causing her disability. Shea then appealed the ALJ's decision, to the superior court. C. Appeal To The Superior Court The superior court issued its decision in December 2014, reversing the ALJ's decision after determining that it was not supported by substantial evidence, The superior court determined that "the factual findings upon which the ALJ based his conclusion that reasonable persons would not attach responsibility to Shea's employer for her injury were not adequate to support his conclusion," This determination was driven in part by the notion that "ft]he ALJ cannot find on one hand that Dr. Smith's testimony was substantial evidence establishing actual cause but not substantial evidence supporting the causal component of proximate cause." The State appeals the superior court's decision. III. STANDARD OF REVIEW When the superior court acts as an intermediate court of appeal in an adminis trative matter, we independently review the merits of the agency's decision. We review a board's factual findings "to determine whether they are supported by substantial evidence," which is "such relevant evidence as a reasonable mind might accept as adequate to support the board's conclusion." "[W]e view the evidence in favor of the findings," and we will not choose between competing inferences or evaluate the strength of the evidence. We will look only to determine if substantial evidence exists in the record, taking into account evidence in the record detracting from the supporting evidence's weight. "The conclusion that a work-related injury or hazard is not a substantial factor in causing an employee's disability must be supported by substantial evidence. It is a legal question whether the quantum of evidence is substantial enough to support such a conclusion in the contemplation of a reasonable mind." IV. DISCUSSION To qualify for occupational disability benefits, Shea had the burden of proving that her employment was "terminated because of a total and apparently permanent occupational disability." An "occupational disability" is a physical or mental condition that, in the judgment of the administrator, presumably permanently prevents an employee from satisfactorily performing the employee's usual duties for an employer or the duties of another comparable position or job that an employer makes available and for which the employee is qualified by training or education; however, the proximate cause of the condition must be a bodily injury sustained, or a hazard undergone, while in the performance and within the scope of the employee's duties and not the proximate result of the wilful negligence of the employee.[ ] The presumption of compensability from the workers' compensation context does not apply in the occupational disability benefits context, and the employee must prove by a "preponderance of the evidence that the disability was proximately caused by an injury which occurred in the course of employment." An employee's underlying injury does not need to have been caused by the employment; instead, an employee can qualify for occupational disability benefits by showing that the employment aggravated a preexisting condition by causing increased pain or other symptoms. This aggravation must be shown to be a substantial factor in contributing to the employee's disability. The ALJ concluded that Shea had established sitting contributed to her disabling pain, but that she did not prove her employment was a substantial factor in causing her disability. This conclusion rested on the ALJ's determination that "some reasonable persons would consider prolonged sitting at work so significant and important a cause as to attach legal responsibility for it and others would not" and that "the latter group is larger." Five reasons supported this eonclu sion: (1) Dr, Beard's testimony that Shea's ilioinguinal neuralgia had resolved weakened Dr. Smith's opinion that prolonged sitting at work was a substantial factor of Shea's disability; (2) Shea did not report prolonged sitting at work as a pain trigger to any of her physicians prior to her disability claim's denial; (3) ordinary daily activity aggravated Shea's pain; (4) Dr. Smith's testimony limited the aggravation of Shea's chronic pain symptoms from prolonged sitting at 5% to 10%; and (5) expert testimony indicated psychological factors may have contributed to Shea's chronic pain. A. The Factual Findings Underpinning The ALJ's Proximate Cause Decision Are Supported By Substantial Evidence. Shea challenges the factual findings underpinning the ALJ's proximate cause decision as unsupported by substantial evidence. On appeal we do not reweigh the evidence or choose between competing inferences, but we will look to the record's entirety to ensure that substantial evidence supports the ALJ's factual findings. 1. Dispute between Dr. Beard's testimony and Dr. Smith's testimony Dr. Beard explained that in her experience the nerve damage caused by Shea's 1984 procedure would likely not continue for as long as Shea's pain had continued. Dr. Beard also noted that ilioinguinal neuralgia is a condition aggravated by heavy lifting, extreme positioning, and sometimes standing or walking for long periods of time. When questioned about prolonged sitting's effect on il-ioinguinal neuralgia, Dr. Beard stated that it would not "cause a permanent worsening or flare of [the] condition" if the person had the ability to adjust her position. This testimony directly contradicted Dr. Smith's testimony that prolonged sitting would affect Shea's condition, which was based on the belief that her ilioinguinal neuralgia had not resolved and remained the primary problem. The dissent asserts that the ALJ erroneously concluded that Shea's neuralgia had resolved. But the ALJ made no such finding. The ALJ found there was dispute between the doctors concerning the underlying cause of Shea's disability and whether her ilioingui-nal neuralgia had resolved, and that this dispute weakened Shea's case. Portions of Dr. Beard's testimony provide substantial evidence for the ALJ's finding that the ilioin-guinal neuralgia diagnosis was disputed: "I do not believe she had chronic pelvic pain," and "even back then, no, I would not have diagnosed her or given her that label of 'chronic pelvic pain.' " The dissent endorses the superior court's assertion that Dr. Beard's testimony "does not necessarily show that Shea's injury had abated; it shows either that (1) Shea's condition was atypical, or (2) something else was causing her pain. Neither is proof that her ilioinguinal neuralgia resolved." But that formulation shows that there were two competing factual inferences the ALJ could have drawn from Dr. Beard's testimony, with evidence supporting either. Although the ALJ did not state he was drawing the latter inference — again, this was the superior court's formulation — he did find that Dr. Beard's testimony raised a dispute concerning the etiology of Shea's current symptoms and that her pain could be caused by something other than ilioinguinal neuralgia substantially aggravated by work requirements. The dissent waves away this evident dispute by asserting that "the factual issue regarding the etiology of Shea's pain was either uncontested or had been resolved in Shea's favor," and maintaining that the possibility of any medical dispute "is flatly contra- dieted by the ALJ's earlier finding . that Shea's 1984 procedure 'resultfed] in long-term unresolved ilioinguinal neuralgia.' " But on remand we authorized the ALJ to "reevaluate the evidence . as he deemfed] necessary," and he was entitled to rely more heavily this time around on Dr. Beard's testimony to discount the persuasiveness of Dr. Smith's opinion concerning the role work requirements played in the progression of Shea's disability. And the ALJ's findings prior to remand concerning the cause of Shea's disability are not as clear as the dissent now asserts. The preponderance of evidence may have indicated that Shea had long-term unresolved ilioin-guinal neuralgia, but Shea's disabling condition was found to be "chronic pain syndrome, primarily resulting from the nerve injury in 1984, and referred and secondary pain related to that injury." The causes of that referred and secondary pain are and always have been in dispute: the ALJ found prior to remand that "the chronic pain she suffers has many sources other than her working conditions"; and in its brief on appeal the State argues that evidence of how other "ordinary daily life activities also aggravated Shea's pain is relevant and material evidence of alternative causation." The dissent correctly notes that the "material, contested question" in this case is "whether sitting at work was so important a cause in Shea's pain that reasonable persons would regard it as a cause and attach responsibility to it." That being the inquiry, it is not clear how the possibility of an alternative cause of Shea's pain was "not legally relevant" after remand — when Shea bore the burden of demonstrating the relationship between work requirements and her "complex chronic pain syndrome" — particularly when Shea's own expert witness attributed no more than 10% of her symptoms to those work requirements. Substantial evidence supported the ALJ's interpretation of Dr. Beard's testimony. And as the superior court noted, "fi]n other areas of law, the Alaska Supreme Court has held that where there are two or more conflicting medical opinions — each of which constitutes substantial evidence — the reviewing court will affirm the decision of the agency below." This principle supports upholding the ALJ's finding that Dr. Beard's testimony weakened Dr. Smith's opinion that prolonged sitting at work was a substantial factor in Shea's disability. 2. Shea's prior failure to report to a physician that sitting at work increased her pain The ALJ determined that prior to Shea's disability claim denial she did not report prolonged sitting at work as a pain trigger to any physician. Shea did not report until 1999 that sitting in general increased her pain. And she did not report until 2003 thát prolonged sitting at work increased her pain, after she filed her occupational disability claim. Substantial evidence in the record supports the ALJ's finding. Shea asserts that the ALJ impermissibly disregarded testimony that prior to 1999 she had reported to her employer that sitting aggravated her pain. The ALJ's fact finding on this issue relates only to when Shea first reported the link to a physician. Though Shea is correct that the record contains evidence she reported pain from sitting to her employer, this evidence does not controvert the ALJ's physician-specific finding. 3. Ordinary activities and Shea's pain The record supports the finding that ordinary daily activities aggravated Shea's pain. Between 1989 and 2001 Shea told various physicians that her pain was aggravated by a range of routine daily activities including working in her yard, any physical activity, using stairs, sitting, standing, walking, bending forward or backward, and lifting. Shea's husband testified that Shea ceased doing routine activities like cooking, gardening, and walking her dog because those activities increased her pain. 4. Dr. Smith's testimony on the upper bound of prolonged sitting as a source of Shea's pain Dr. Smith stated that prolonged sitting increased Shea's pain by "maybe 5 or 10 percent, at the most." There is no dispute about this testimony. 5. Dr. Beard's testimony regarding psychological factors Dr. Beard's testimony clearly supports the ALJ's observation that psychological factors may have contributed to Shea's disabling pain. Dr. Beard testified: "I don't believe she was disabled as much as she felt she was disabled. Her perception of her disability . exceeded . what would be . mostly medically reasonable"; in situations like Shea's the pain's original source can resolve and the pain "itself becomes their driving force. And it's a big emotional, psychological, psychosocial dilemma as to what is really driving this pain. So in her case, I would say . it was her perception that she was not able to return to work, not necessarily . that that was accurate." Dr. Beard noted that without further psychological evaluation she could not definitively say whether Shea's pain had a psychological, rather than physical, cause, but that based on the evidence at hand she saw no grounds to rule it out. The ALJ did not find that psychological factors did cause Shea's disability. He rioted only that they may have done so. Substantial evidence supports this observation. B. The ALJ's Ultimate Factual Determination That Prolonged Sitting At Work Was Not The Proximate Cause Of Shea's Disability Is Supported By Substantial Evidence. The causation question disputed here is whether Shea's employment was a proximate cause of her disability. A proximate cause is a cause that is "so important in bringing about the injury that reasonable [persons] would regard it as a cause and attach responsibility to it." The appropriate inquiry is "whether the conduct has been so significant and important a cause that the defendant should be legally responsible." The ALJ determined that Shea's employment was not so significant and important a cause that the State should be legally responsible. Because reasonable minds could disagree whether Shea's employment was a substantial factor in causing her disability, we review the ALJ's determination for substantial evidence. We give deference to an ALJ's decision if it is supported by evidence "substantial enough to support [the] conclusion in the contemplation of a reasonable mind." Dr. Beard's testimony supports the ALJ's conclusion. It casts doubt on whether Shea suffered from ilioinguinal neuralgia during her State employment, breaking the causal chain between Shea's prolonged sitting and the aggravation of a preexisting condition. The dissent suggests that Dr. Beard's testimony should be discounted because Dr. Beard applied an incorrect legal standard when offering her opinion on whether Shea's disability was work related. But as the ALJ noted, Dr. Beard's mistake about the appropriate legal standard was relevant only to her "opinion as to causation." The dissent offers no reason Dr. Beard's diagnosis of Shea's condition and potential aggravating factors should likewise be dis counted or why it should not cast doubt on the premise of Dr. Smith's opinion, which was that "ilioinguinal neuralgia is the primary problem.'' Dr. Beard's testimony substantially undercuts Dr. Smith's, and, even if it did not, Dr. Smith's opinion that Shea's employment contributed to the increase in her pain by no more than 10% would not necessarily make it a substantial factor "if reasonable persons would [not] regard the injury as a cause of the disability and [not] attach responsibility to it." Dr. Smith testified it was more likely than not that Shea's work environment aggravated her condition by 5% to 10%. Dr. Smith himself characterized this percentage as "small." Even if the ALJ relied exclusively on Dr. Smith's testimony, he could reasonably conclude that a 5% to 10% increase in Shea's symptoms resulting from work was not "so significant and important a cause as to attach legal responsibility to her employer for her disability." ' Our Shea II decision leaves room for such a finding. And although the dissent certainly is correct that Shea II "permits the opposite conclusion as well," the ALJ is the fact finder here, not this court. That Dr. Smith's testimony in itself could have been sufficient to support the ALJ's proximate cause finding is also relevant to the dissent's arguments about the ALJ's allegedly "contradictory findings," The dissent argues that the ALJ made "contradictory findings" because Dr. Smith's testimony was sufficient to establish but-for cause yet insufficient to establish proximate cause. We conclude instead that the ALJ correctly required a higher showing to establish that prolonged sitting was a "substantial factor" in Shea's disability rather than simply "one among a multitude of aggravating factors, no one of which stood out as of particular significance." "Substantial factor" necessarily requires a higher showing than but-for cause in this context: "but-for cause" requires that Shea's work was a factor, in causing her disability; "legal cause" demands in addition that the factor be substantial. The ALJ could have relied exclusively on Dr. Smith's testimony throughout and found without contradiction that it sufficed to establish but-for cause but not proximate cause. Shea's failure until 2003 to report to a physician that prolonged sitting at work caused her disabling pain further supports the conclusion that a reasonable person would not attach legal responsibility to her employer. Her failure to report to a physician that work aggravated her pain indicates that her employment was not, in her mind, so significant a cause of her increased pain that she thought it particularly relevant to medical diagnosis and treatment. The dissent asserts that the ALJ's finding here provides no persuasive evidence concerning the legal causes of Shea's disability because "Shea's reports to her supervisor indicate 'that she knew [sitting] was a factor in what caused her pain,'" and because "Shea had no need to report her work conditions to her doctor" as her supervisor was working with her to mitigate her pain. This argument misapprehends the finding's relevance. It is undisputed that Shea's pain manifested at work. But the relevant inquiry is not whether sitting for prolonged periods aggravated the contemporaneous expression of symptoms. Rather the relevant inquiry is whether prolonged sitting in some way precipitated or worsened the symptoms or the underlying disease process on a "presumably permanent[ ]" basis. The dissent acknowledges this distinction when it discusses how Dr. Smith "testified that prolonged sitting at work aggravated Shea's pain in two ways: by increasing it during work, after which the pain would return to baseline, and by increasing her baseline level of pain." We are concerned only with the latter. Shea discussing prolonged sitting at work with her supervisors is evidence of the former, but it does not address the relevant inquiry. And although for medical diagnosis and treatment purposes, as the dissent states, "prolonged sitting at work is not reasonably distinguishable from prolonged sitting in general," in the ALJ's opinion sitting also is not distinguishable in significance from other activities Shea reported to physicians, including "standing, walking, exercise, bending forward or backwards, cold, and stairs." Shea failed to identify to physicians that work requirements were a likely contributing factor to her disability but addressed work requirements with her supervisors; these actions support the ALJ's finding prior to remand that "prolonged sitting was one among a multitude of aggravating factors, no one of which stood out as of particular significance." And this lack of distinction is relevant to determining whether work requirements should be considered the legal cause of Shea's disability. The dissent correctly notes that the ALJ's observations about psychological factors were "tepid" and based on mere speculation because Shea did not undergo sufficient psychological evaluation. But Dr. Beard's very firm opinion that "I do not believe [Shea] had chronic pelvic pain" was not mere speculation; Dr. Beard based her opinion on personal examination and experience treating patients with similar conditions. Dr. Beard's opinion undercut the persuasiveness of Shea's arguments. And because Shea bore the burden of proof, the State's "theory of the case" did not have to include an alternative diagnosis as the dissent seems to suggest. Rather, existing plausible alternative bases for Shea's pain support the ALJ's determination that she failed to show work requirements were the proximate cause of her disability. Other daily activities increased Shea's pain and other factors, some perhaps psychological, may have played a role in her symptoms. This evidence supports a reasonable conclusion that Shea's employment was not so significant or important a cause as to justify holding the State legally responsible. Because, in the contemplation of a reasonable mind, the evidence relied on is substantial enough to support the ALJ's conclusion, we affirm the ALJ's decision. Y. CONCLUSION We REVERSE the superior court's decision reversing the ALJ's decision, thereby AFFIRMING the ALJ's decision sustaining the administrator's denial of Shea's occupational disability benefits. . See Shea v. State, Dep't of Admin., Div. of Ret. & Benefits (Shea II), 267 P.3d 624 (Alaska 2011); Shea v. State, Dep't of Admin., Div. of Ret. &Benefits, 204 P.3d 1023 (Alaska 2009). . 267 P.3d at 626-30. . Id. at 627. . Id. at 628. . Id. at 627-28 (alteration in original). . Id. at 628. . Id. at 628-29 (last two alterations in original). . Id. at 629. . Id. at 628. . Id. at 627. . Id. at 629. . Id. . Id. at 630. . Id. at 636 (stating that a factor can contribute to a person's disability in equal proportion to other activities and still be a substantial factor if "reasonable persons would regard the injury as a cause of the disability and attach responsibility to it" (quoting Doyon Universal Servs. v. Allen, 999 P.2d 764, 770 (Alaska 2000))). . Id.; see also Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 792 (Alaska 2007) (noting reviewing court can permit agency to "reweigh the evidence on remand"). . Shea II, 267 P.3d at 630. . Id. (quoting Lopez v. Adm'r, Pub. Emps.' Ret. Sys., 20 P.3d 568, 570 (Alaska 2001)). . Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 903 (Alaska 2004) (citing Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980)). . Shea II, 267 P.3d at 630 (quoting Lopez, 20 P.3d at 570). . Id. . Id. (footnote omitted) (first citing Lopez, 20 P.3d at 571; then citing Municipality of Anchorage, Police & Fire Ret. Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995)). . See id. at 631 (stating that employee bears burden of proof). . AS 39.35.410(a). . AS 39.35.680(27). . Shea II, 267 P.3d at 631 (quoting State, Pub. Emps. Ret. Bd. v. Cacioppo, 813 P.2d 679, 682-83 (Alaska 1991)). . See id. ("[A]n accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury." (quoting Hester v. State, Pub. Emps.' Ret. Bd., 817 P.2d 472, 475 (Alaska 1991))). . Id. at 631-34. . In December 2000 Shea was diagnosed with ilioinguinal neuralgia, possibly related to nerve damage she suffered in 1984. Shea II, 267 P.3d at 626-27. . Id. at 634. . Although the dissent argues that "nothing in the ALJ's discussion even hints at a finding" that the etiology of Shea's symptoms was disputed, the ALJ explicitly found that Dr. Beard's "testimony weakens the basis for [Dr. Smith's] opinion, which was that Ms. Shea's underlying physical condition . had not resolved," that there was "expert medical testimony to the effect that her underlying physical condition had resolved," and that there was "expert medical testimony that psychological factors may have contributed to her disability." . Shea II, 267 P.3d at 636. . See Doyon Universal Servs. v. Allen, 999 P.2d 764, 767-68 (Alaska 2000). . Shea II, 267 P.3d at 634 (alteration in original) (quoting Vincent by Staton v. Fairbanks Mem'l Hosp., 862 P.2d 847, 851-52 (Alaska 1993)). . Id. (quoting Vincent, 862 P.2d at 851). . Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007) (explaining "determinations of proximate cause usually involve questions of fact" and become "a matter of law only where reasonable minds cannot differ"). . Municipality of Anchorage, Police &Fire Ret. Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995) (quoting Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1188-89 (Alaska 1984)) (explaining when quantum of evidence is substantial enough to support administrative decision). .Dr. Beard defined "aggravation" as a "permanent worsening or flare [up] of the[] condition," and testified on that basis that Shea's work requirements had not aggravated her disability. But an occupational disability can be found where work requirements aggravated the symptoms of a disease, even if there is no change to the underlying condition. Hester v. State, Pub. Emps.' Ret. Bd., 817 P.2d 472, 476 n.7 (Alaska 1991). . Shea II, 267 P.3d at 636 (citing Doyon, 999 P.2d at 770). . See id. . The dissent states that "the ALJ conceded [there] was adequate proof of causation by Shea." The only element of causation the ALJ "conceded" was "but-for" cause. But the ALJ has now twice determined that same evidence, in light of its own weaknesses and the doubt cast on it by the State's evidence and expert medical testimony, was insufficiently compelling to establish proximate cause. . The dissent contends that Dr. Smith's testimony would not support such a finding because "the ALJ did not find Dr. Smith's opinion persuasive on the point the court suggests." But in the decision prior to remand the ALJ accorded Dr. Beard's testimony less weight, yet noted that "Dr. Smith's opinion, while persuasive as an expression of medical opinion, offers only limited support for the claim that Ms. Shea's working conditions were a substantial factor in her disability." After remand, although the ALJ concluded that Dr.. Smith's opinion supported Shea's theoiy as a general matter, the ALJ explicitly listed as evidence against Shea the precise extent — 5% to 10% — Dr. Smith attributed Shea's symptoms to prolonged sitting. Given that on appeal we do not reweigh evidence or choose between competing inferences, it would be inappropriate to. reverse the ALJ's decision when Shea's own evidence reasonably could be found insufficient to prove her case, See Shea II, 267 P.3d at 634; see also Road v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 903 (Alaska 2004) ("In applying tire substantial evidence test we view the evidence in favor of the findings." (citing Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980))). . See AS 39.35.680(27) (defining "occupational disability" as "a physical or mental condition that . presumably permanently" prevents the employee from performing the employee's usual or comparable duties (emphasis added)); Hester, 817 P.2d at 476 n.7 (holding there is no distinction in the occupational disability context between the "worsening of the underlying disease process and worsening of the symptoms"); see also Shea II, 267 P.3d at 631 ("[A]n accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury." (emphasis added) (quoting Hester, 817 P.2d at 475)). The dissent argues that we are quoting AS 39.35.680(27) out of context and that it is only the "employee's inability to perform her work" that "must be permanently precluded." The statute is clear, however, that our inquiry focuses on the "proximate cause of the condition" (or disabling symptoms), not on the proximate cause of the inability to work, if in this context those two causes can be meaningfully distinguished. AS 39.35.680(27) (emphasis added). And AS 39.35.410 further supports our reading, providing that an "employee is eligible for an occupational disability benefit if employment is terminated because of a total and apparently permanent occupational disability." (Emphasis added.) . The dissent argues that Shea could qualify for occupational disability benefits "not only by showing that sitting at work permanently caused an increase in her baseline pain but also by showing that sitting at work increased her pain to such an extent that she could not perform her work and that this circumstance was permanent," and asserts that "[rjequiring a permanent worsening of baseline pain is no different from requiring a permanent worsening of an employee's condition." But this formulation eliminates the causal component of our inquiry and ignores the requirement that "the proximate cause of the condition must be a bodily injury sustained, or a hazard undergone, while in the performance and within the scope of the employee's duties." AS 39.35.680(27) (emphasis added). In Hester we rejected a distinction between the "worsening of the underlying disease process and worsening of the symptoms of a disease." 817 P.2d at 476 n.7. But we did not alter the statute's requirement that the "worsening of the symptoms" be proximately caused by work requirements. Id. Requiring work to be a proximate cause is not a "reformulation of a distinction we rejected" in Hester, as the dissent asserts. We instead maintain the distinction between occupational and nonoccupational disabilities: the former requires that work be the proximate cause of the disability, while the latter does not. Compare AS 39.35.680(27) (defining occupational disability), with AS 39.35.680(24) (defining non-occupational disability). Nonoccupational disability benefits are available to those, like Shea, for whom work is not a proximate cause of the disability. See AS 39.35.680(24); AS 39.35.400.

12340801

STATE of Alaska, Appellant, v. James R. SEIGLE, Appellee

State v. Seigle

2017-03-17

Court of Appeals No. A-11473