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10433591

Linda OLLICE, Appellant, v. ALYESKA PIPELINE SERVICE COMPANY, Appellee

Ollice v. Alyeska Pipeline Service Co.

1983-02-18

No. 5840

1182

1189

659 P.2d 1182

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before BURKE, C.J., and RABIN-OWITZ, MATTHEWS and COMPTON, JJ.

Linda OLLICE, Appellant, v. ALYESKA PIPELINE SERVICE COMPANY, Appellee.

Linda OLLICE, Appellant, v. ALYESKA PIPELINE SERVICE COMPANY, Appellee. No. 5840. Supreme Court of Alaska. Feb. 18, 1983. Roger Brunner, Rice, Hoppner, Brown & Brunner, Fairbanks, for appellant. Kenneth P. Eggers, Teresa A. Hogan, Groh, Eggers, Robinson, Price and Johnson, Anchorage, Alfred Toulon Smith, Anchorage, for appellee. Before BURKE, C.J., and RABIN-OWITZ, MATTHEWS and COMPTON, JJ.

4123

25705

OPINION RABINO WITZ, Justice. This appeal involves a suit for wrongful interference with an employment contract brought by Linda Ollice against Alyeska Pipeline Service Company (Alyeska). Ollice alleged that she was discharged from her job as a security guard on the oil pipeline (Pump Station 5) by her employer American Guard and Alert, Inc. (AGA) at the insistence of Alyeska. Alyeska admitted it had directed AGA to remove Ollice from the guard force at the Alyeska facility. Alyeska claimed it was justified in taking this action because Ollice had violated Alyeska's rules prohibiting the possession and consumption of alcoholic beverages at Alyeska facilities or on Alyeska property. The case was tried before a jury which returned a verdict in favor of Alyeska. At trial the parties stipulated to the following facts: Ollice was employed in the fall of 1978 as a security guard for AGA, which had a contract to provide guard services for Alyeska on the Trans-Alaska Pipeline System. An Alyeska internal rule pro hibited possession and consumption of alcohol by anyone on Alyeska property or facilities. On November 26, 1978, Ollice was invited to a birthday party for one of Alyes-ka's employees, to be held on Alyeska property. Ollice agreed to attend only'after she was assured that no alcohol would be served. Ollice was off duty when she went to the party. At the party Ollice was given a drink, and after taking several sips she discovered it to be wine. Upon realizing that alcohol was being consumed, Ollice immediately left the party but did not report the incident to her superiors. Soon after this incident, Robert Koslick, the Northern District Security supervisor for Alyeska, learned that alcoholic beverages had been served at the party. On December 29, he interviewed Ollice, and she admitted that she had attended the party and that she had consumed some wine. Koslick then directed Ollice's immediate AGA supervisor, Lt. Bryan, to remove Ol-lice from Alyeska property. "This directly resulted in the termination of plaintiff by .American Guard and Alert." Ollice was rehired on March 24, 1979. Ollice was the only person who attended the party who was fired, although Alyeska claims suspensions and warnings were issued to other employees who were in attendance. Ollice was the only security guard at the party. Ollice is a woman and an Athabascan Indian. Both parties agreed that Ollice established a prima facie case of intentional interference with her employment contract by Alyeska. The only factual issue was whether Alyeska had adequate justification for its actions. Alyeska emphasized Ollice's violation of the rule banning alcohol consumption and the consequent harm to her credibility as a security guard. Alyeska also noted that because Ollice was the only security guard at the party, she was the only participant under Koslick's supervision. According to Alyeska, the fact no other workers were fired is simply a reflection of Koslick's tough stance with his charges, the security force, while other supervisors chose lesser (or no) punishments for their workers. Ollice stressed the arbitrariness of the punishment. She claimed that the blanket rule prohibiting alcohol was seldom enforced, and that she had even been told by her AGA superior to overlook violations of the rule. Ollice also introduced evidence to show Koslick's discriminatory actions toward her. Koslick admitted that Ollice was the only person at the party who he questioned although he normally would interview all participants at a party where alcohol was served. Koslick also testified that he used his influence to help another worker, not directly under his supervision, who had been at the party and who admitted drinking. Although Ollice made reference to racial and sexual discrimination, the thrust of her argument was that Alyeska's disparate treatment of her was enough to raise an inference of improper motives and that Alyeska's alleged justification was just a pretext for some wrongful purpose. The superior court in giving its jury instructions characterized Ollice's case as one of intentional interference with an employment contract on the basis of racial or sexual discrimination. In response to several questions from the jury during its deliberations, the superior court indicated that the jury should examine only Ollice's firing and not Alyeska's handling of the "whole incident," and that a verdict for Ollice would represent a finding that she received disparate treatment strictly on the basis of race or sex. In Instruction No. 8, the superior court informed the jury that Alyeska, in seeking Ollice's removal, must have acted in good faith without malice or the specific intent to injure Ollice. Finally, the superior court refused to give Olliee's proffered jury instruction regarding inferences which can be drawn from circumstantial evidence. On appeal, Ollice contends that each of these rulings and actions were erroneous. I. Did The Superior Court Improperly Limit Ollice's Case to One of Sex or Race Discrimination? The superior court instructed the jury in part that Ollice "... contends that Alyeska Pipeline Service Company discriminated against her because of her race or sex when it ordered American Guard and Alert to terminate her." Alyeska asserts that Ollice failed to specifically object to the instruction when the final instructions were presented to the jury. Ollice contends that the trial court was aware of her objections to the superior court's limitation of her case. The fact that the trial court was aware of Ollice's position on this issue does not excuse her failure to object to the instruction in question. Brown v. Estate of Jonz, 591 P.2d 532 (Alaska 1979). Although Ollice failed to object appropriately to the instruction in question this court will consider her substantive arguments relating to this issue if the instruction constituted plain error. To constitute plain error the instruction must create a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice. We conclude that since the trial court did not err in limiting Ollice's case to one of racial or sexual bias the giving of instruction no. 7 did not constitute plain error for the following reasons. The only factual issue for determination by the jury relates to the question of Alyeska's justification. More particularly, the jury had to determine whether Alyeska exercised its acknowledged contractual rights to enforce its rule for a legitimate purpose or for a covert and impermissible purpose. In this regard the superior court instructed the jury that on the basis of the evidence presented Ollice "has established a prima facie case" by proving that the termination of her employment contract with American Guard was "intentionally directed" by Alyeska. The court further informed the jury that Ollice was thus entitled to recover unless Alyeska "shows that its conduct was justified." The superior court further instructed the jury that: The plaintiff contends that Alyeska . discriminated against her because of her race or sex when it ordered American Guard . to terminate her . Alyeska contends that Linda Ollice was terminated because she violated the contract of her employment with American Guard . and the terms and conditions of her contract between her employer and Alyeska Pipeline Service Company. You are instructed that such a reason is a non-discriminatory reason. Therefore, if you find that Linda Ollice has proven that she suffered disparate treatment at the hands of Alyeska and that the reasons for her discharge were merely a pretext for her discharge, your verdict must be for the plaintiff. On the other hand, if the plaintiff was not treated disparately and the reasons exercised by Alyeska for directing her discharge was not a pretext then your verdict must be for the defendant Alyes-ka Pipeline Service Company. In our view the court's instructions fairly presented Ollice's case to the jury and, given the evidence in the record, were not tantamount to a "limitation" upon Ollice's case. The only evidence of pretext or improper motive on Alyeska's part was related to sex or race discrimination. Ollice has not cited us any portion of the record where she was precluded from introducing evidence on another theory. In this regard, we think the case at bar is similar to Bendix Corp. v. Adams, 610 P.2d 24 (Alaska 1980). There the plaintiff sued Bendix for alleged interference on a contract between the plaintiff and Bendix's subsidiary. Bendix argued its interference was justified because of its direct financial interest in the subsidiary. The jury found for plaintiff and this court reversed, holding that there was no evidence that Bendix acted out of any malicious motive. We stated: Adams does not appear to allege anywhere that the Bendix directive was the product of ill will or maliciousness. In the course of distinguishing certain prior cases, we emphasized in Bendix the lack of any evidentiary basis for a finding of bad faith or retaliation on Bendix's part. Similarly, in the case at bar there is an absence of evidence from which a jury might conclude that Alyeska was motivated to interfere in Ollice's contract with American Guard for reasons other than sexual or racial bias. II. Did The Superior Court Err In Its Responses To The Jury's Questions? The first response that Ollice objects to was given by the superior court in regard to the following question: [A]n instruction reads "Alyeska Pipeline must prove that the justification was as broad as its actions." Our question is: Does this apply only to Linda's firing or to how Alyeska handled the whole incident. The superior court responded, "As to Linda Ollice only." Ollice argues that the trial court's response to the question cut off the bulk of her case. Much of the evidence she introduced at trial emphasized the lenient way other party participants were treated, vis-a-vis Ollice, for the same transgression. According to Ollice, the court's response limited the jury's attention only to her firing and foreclosed any consideration of Alyes-ka's treatment of the other parties and its refusal to rehire Ollice even after it was discovered that no one else at the party was expelled. Alyeska argues that the trial court's response properly indicated that the only issue for the jury was whether Alyeska's procurement of Linda Ollice's discharge was a proper exercise of its contractual rights. Alyeska argues that the reason for Ollice's disparate treatment was the company's separate lines of authority. She was the only guard at the party and therefore the only one under Koslick's supervision; moreover, Koslick reasonably believed that those who enforce the rules should strictly adhere to them. We hold that the superior court's response was correct. The only issue remaining at trial was Ollice's firing and whether Alyeska acted in good faith when it direct ed her off Alyeska property. Thus, the nature and the substance of the relationship between Ollice and Alyeska was of paramount significance. Later in their deliberations there was another exchange between the jury and the trial judge. The jury asked: If we decide for the plaintiff, Linda Ol-lice, are we establishing that she received disparate treatment strictly on the basis of race or sex? The superior court responded, "Yes." Ollice raises two objections to the superior court's response: that it improperly shifted the burden of proof on the issue of justification from Alyeska to Ollice, and that it improperly narrowed Ollice's case to race or sex discrimination. Since we have previously addressed and disposed of Ollice's second contention we will answer Ollice's first objection. After reviewing the question and response thereto and Ollice's argument, we are unable to see how the court's response caused any shift in the burden of proof. The issue before the jury was whether Alyeska was justified in its actions. In order to decide for Ollice the jury would have to decide that Alyeska's alleged justification was a pretext for some improper motive. Since the superior court had narrowed the range of improper motives to "race or sex discrimination" a verdict for Ollice would indeed mean that the jury had found that Ollice "received disparate treatment strictly on the basis of race or sex." This statement would be true regardless of which party had the burden of proof on the issue of justification. Therefore, we hold that the court's response did not result in any shift of burden of proof concerning this issue. III. Did The Superior Court Err In Giving Instruction No. 3? Ollice claims that the superior court made three errors in giving instruction number three which set out Alyeska's burden of proof in establishing justification. Ollice first argues that the instruction incorrectly eases the defendant's case by only requiring Alyeska to show that it acted without malice or without specific intent to injure. The instruction reads in part: "[T]he obligation to act in good faith is the obligation not to act maliciously or with specific intent to injure plaintiff. Defendant has the burden of proving by a preponderance of the evidence that its agent acted in good faith." We reject Ollice's contention. The portion of instruction number three is in accord with our decision in Alyeska Pipeline Service Company v. Aurora Air Service, 604 P.2d 1090, 1095 n. 7 (Alaska 1979). In accordance with Aurora Air, Alyeska had the burden of proving that it acted in good faith, that its justification was not a mere pretext, shielding an improper ulterior motive. Office also objected to the following portion of instruction number three: You are instructed that Alyeska is not required to prove that its agent's actions represented a course of action that you might agree with or find preferable. We find no merit in Office's contention. In Alyeska Pipeline Service Company v. Aurora Air Service, 604 P.2d 1090 (Alaska 1979) we approved of an instruction which read in part: "With regard to the defendants' 'justification' in this action, you are instructed that defendants are not required to prove that their actions were necessarily correct or represent a course of action that you might agree with or find preferable." Office's third objection to the instruction is that it confusingly refers to Koslick rather than Alyeska. The instruction reads in part: "Alyeska may still be liable to plaintiff if you find Mr. Koslick acted in bad faith when he directed plaintiff's removal from the Pump Station 5 guard force." There was some evidence that Koslick's superior, Wellington, was ultimately responsible for Office's termination. The trial court changed two other references of Mr. Koslick to "Alyeska" or "its agents," but preferred to keep the final reference as "Mr. Koslick." This, the superior court thought would be more comprehensible to the jury. "[TJhey've got to have some human bodies up there. It can't be a ghost of Alyeska that does this stuff." Although we do not believe the jury would have been confused by the substitution of "Koslick" with "Alyeska's agents," the instruction did not improperly focus the case on Koslick. In this regard the superior court also instructed the jury that: "Alyes-ka Pipeline Service Company and American Guard and Alert, Inc. are corporations and consequently can only act through their agents or employees." In our view the jury possessed sufficient intelligence to realize that Alyeska, not Koslick, was the defendant. Furthermore, in our view the reference to Koslick is rendered harmless by various other more general references to Alyeska in the court's instructions. IV. Did The Superior Court Err In Refusing To Give The Jury An Instruction on Circumstantial Evidence? Office submitted an instruction regarding- direct and circumstantial evidence and the inferences which can be drawn from this evidence. Office argued that the instruction was crucial because much of the evidence was circumstantial, centering on the motives of Alyeska and Koslick. Other courts have suggested that a special circumstantial evidence instruction is necessary whenever a party's case depends upon circumstantial evidence. In an intentional interference with a contract claim where the defendant poses a valid justification, the strength of the plaintiff's case will of ten depend upon inferences which tend to show an improper ulterior motive. In the present case, there is no direct evidence of improper motive, and Ollice's ease relies upon the strength of the inference linking her disparate treatment to some discriminatory ulterior motive. The question now before us is whether the court's failure to give a special jury instruction on circumstantial evidence constitutes reversible error. Our principal concern is whether the failure to give the instruction was prejudicial to Ollice. Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244, 249 (Alaska 1969); Alaska Brick Co., Inc. v. McCoy, 400 P.2d 454, 456 (Alaska 1965). We must decide whether the jury needed to be told that they were permitted to draw inferences from facts or whether the superior court's instruction that evidence should be viewed in the light of everyday experience sufficiently cover that ground. Here, the necessity for the instruction was mitigated by the superior court's general instruction to the jury defining evidence and describing how to view it. The superior court advised the jury: "Evidence includes the sworn testimony of witnesses, exhibits submitted into the record, facts agreed to by the attorneys, and facts judicially noted by- the court. The evidence should be considered and viewed by you in light of your own observations and experiences in everyday life." In our view, the superior court did not abuse its discretion in concluding that its own, more general instruction was sufficient to inform the jury as to the manner in which it could evaluate circumstantial evidence. AFFIRMED. . Ollice had originally filed suit against AGA and Alyeska. Prior to trial, however, the parties stipulated to a dismissal, with prejudice of Ollice's claim against AGA for wrongful discharge and failure to pay overtime wages. . Under this contract, Alyeska reserved the right to require AGA to remove from Alyeska facilities any guard who did not adhere to Alyeska's rules of conduct. The contract provided: CONTRACTOR shall at all times enforce strict discipline and good order at the WORK SITES and in this connection shall seek to avoid employing on SERVICES any unfit person or anyone not skilled in the work assigned to him. ALYESKA may refuse any persons admission to property, under OWNERS' or ALYESKA'S control and CONTRACTOR shall promptly exclude and remove any such person therefrom. ALYESKA shall post rules and regulations governing the performance of SERVICES and conduct of employees at the camp and WORK SITE(S). CONTRACTOR shall take all steps necessary to require its employees to comply with such rules and regulations, including obtaining appropriate provisions in collective bargaining agreements, if necessary. In addition, CONTRACTOR shall notify its employees that failure to observe such rules and regulations by any employee of CONTRACTOR will be grounds for appropri ate action, including removal of the employee from camp and WORK SITES. . Ollice asserted that Koslick specifically told Lt. Bryan to fire her. Koslick testified that he merely told Lt. Bryan to remove her from Alyeska property. . Ollice had initiated a proceeding with the Human Rights Commission. Her rehiring was related to that proceeding. . Ollice testified that she was the only Athabascan native at the party. . This employee, Lee Davis, was the "guest of honor" at the birthday party. She was fired, however, for reasons other than her participation at the party. She went to Koslick to try to get him to help her get rehired. She told Kos-lick about the party, and he subsequently helped her get her job back. . Alaska R.Civ.Pro. 51(a) provides:' No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and grounds of his objection. . In Drickersen v. Drickersen, 604 P.2d 1082, 1085 (Alaska 1979) and City of Nome v. Ailak, 570 P.2d 162, 166 (Alaska 1977) the court considered allegations of error in the giving of instructions despite appellants' failure to make specific objections. Unlike those cases, however, the superior court in this case did not give Ollice a "blanket exception." While the trial court did state, "all exceptions taken to the instructions previously will be considered as having been preserved at this time," it was referring to' the preceding conference where both attorneys examined each instruction and detailed their exceptions. At that conference Ollice's attorney was aware of the necessity for making specific objections but for some unexplained reasons failed to object to instruction no. 7. . Brown v. Estate of Jonz, 591 P.2d 532, 535 (Alaska 1979). . City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977). . The superior court instructed that the burden of proof was upon Alyeska to show the justification for its conduct. .At several stages in the trial the court requested counsel for Ollice to identify any theory other than race or sex discrimination which would support her claim that Alyeska lacked justification for its actions. . Bendix Corp. v. Adams, 610 P.2d 24, 31 (Alaska 1980). . Id. 610 P.2d at 32. . Although not raised by counsel for Ollice we note that the superior court responded to the jury questions without informing respective trial counsel that it had received these communications from the jury. Thus counsel were not afforded the opportunity to state their positions regarding whether or not any response should be made, and if a response was indicated, the content of any such response. It is obvious that the preferred practice is for the superior court to inform counsel of communications received from jurors during their deliberations and to afford counsel the opportunity to apprise the court of their respective positions in regard to the communication as well as to any response from the court. . Instruction 13 in Aurora Air read in part: "[T]he obligation to act in good faith or with justification is the obligation not to act maliciously or with the specific intent to injury plaintiff." Aurora Air, supra at 1095 n. 7 [emphasis added]. The only difference between this instruction and the instruction in the present case is that Instruction No. 3 does not contain the emphasized words. The deleted words do provide an added degree of clarity, serving to stress that the trial court is discussing the defendants' privilege to interfere. The effect of their absence in the case at bar is in our view minimal. ."One is privileged to invade the contractual interest of himself, others, or the public, if the interest advanced by him is superior in social importance to the interest invaded. However, if one does not act in a good faith attempt to protect his own interest or that of another but, rather, is motivated by a desire to injure the contract party, he forfeits the immunity afford ed by the privilege." Alyeska Pipeline Service Company v. Aurora Air Service, 604 P.2d 1090, 1094 (Alaska 1979) (citations omitted). . The proposed instruction read as follows: Evidence is all the testimony received from the witnesses, including depositions and the exhibits admitted during the trial and facts agreed to by counsel. Evidence may be direct or circumstantial, or both. Direct evidence is the testimony given by a witness who has seen or heard the facts to which he testifies. It includes exhibits admitted into evidence during the trial. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which you may reasonably infer other related or connected facts which naturally and logically follow, according to the common experience of mankind. The law makes no distinction between direct and circumstantial evidence as to the degree of proof required; each is accepted as a reasonable method of proof and each is respected for such convincing force as it may carry. To infer, or to make an inference, is to reach a reasonable deduction of fact which you may but are not required to make from other facts which you find have been established by direct evidence. Whether an inference is made rests entirely with you. . Shepherd v. Walley, 28 Cal.App.3d 1079, 105 Cal.Rptr. 387, 390-91 (Cal.App.1972); Pacific Insurance Company of N.Y. v. Frank, 452 P.2d 794, 797 (Okl.1969); Buie v. Reynolds, 571 P.2d 1230, 1234 (Okl.App.1977). . Civil Rule 61 provides: No error . in anything done or omitted by the court . is grounds for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. . Assuming, arguendo, that the superior court's failure to give the requested circumstantial evidence instruction was error, such error was harmless in light of this record.

10429497

John STANFILL, James Wulff, Larry Long, and Robert Langlotz, Appellants, v. CITY OF FAIRBANKS, Appellee

Stanfill v. City of Fairbanks

1983-02-18

No. 6321

579

583

659 P.2d 579

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

John STANFILL, James Wulff, Larry Long, and Robert Langlotz, Appellants, v. CITY OF FAIRBANKS, Appellee.

John STANFILL, James Wulff, Larry Long, and Robert Langlotz, Appellants, v. CITY OF FAIRBANKS, Appellee. No. 6321. Supreme Court of Alaska. Feb. 18, 1983. Joseph W. Sheehan, Fairbanks, for appellants. Dennis M. Bump and D. Randall En-sminger, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellee. Before BURKE, C.J., and RABINO WITZ, MATTHEWS and COMPTON, JJ.

2294

14386

OPINION COMPTON, Justice. John Stanfill, James Wulff, Larry Long and Robert Langlotz (collectively referred to hereinafter as "Stanfill") were terminated from their employment with the City of Fairbanks. Stanfill appeals from the summary judgment granted by the superior court in favor of the City. The primary issue raised by Stanfill is whether his termination violated the City of Fairbanks Personnel Ordinance No. 3786. For the reasons set forth below, we find that the superior court's granting of summary judgment was in error. I. FACTUAL AND PROCEDURAL BACKGROUND The Municipal Utilities System (MUS) employees of the City of Fairbanks are, at least in part, represented by the Fairbanks AFL-CIO Joint Crafts Council. In the winter of 1979-80, MUS and the Joint Crafts Council entered into labor negotiations to establish a new contract and resolve outstanding grievances. On January 8, 1980, the MUS employees represented by the Joint Crafts Council went on strike against the City. After considering various alternatives in handling the strike situation, the City gave notice to striking employees on January 9, 1980, that they would be discharged from their employment if they refused to return to work. Pursuant to this notice, the striking employees were discharged on January 11, 1980. Thereafter, Stanfill was hired to work in the City's sewage treatment system. Stanfill was told by an MUS manager that he was being hired as a permanent employee. In light of the ongoing strike, however, Stanfill was also informed that the City could be ordered by the superior court to rehire the striking employees. In that case, Stanfill's position would not necessarily be permanent. On February 12,1980, the Fairbanks City Council met to discuss a settlement offer proposed by the Joint Crafts Council. One of the terms of the settlement offer was that the striking employees be allowed to return to their former positions. The council voted to accept all of the terms of the offer. Thereafter, on February 13, 1980, Stanfill was laid off from his employment. The stated reason for his layoff was "lack of work." On April 22, 1980, Stanfill filed a complaint against the City, alleging misrepresentation and breach of contract. The City subsequently moved for and was granted summary judgment. This appeal followed. II. DISCUSSION Stanfill argues that his termination from employment with the City was unjustified and in violation of the City of Fairbanks Personnel Ordinance. Specifically, Stanfill contends that his termination does not come within the meaning of a "layoff" as defined by the Ordinance. Although Stanfill concedes that his employment was subject to the Ordinance's provisions relating to the probationary period of new employees, he contends that termination within this period is limited to "dismissal for cause." The standard to be applied by the superior court on motions for summary judgment is set forth in Alaska Civil Rule 56(c). A motion for summary judgment is to be granted only when the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Alaska R.Civ.P. 56(c). In ruling on a motion for summary judgment, all reasonable inferences must be drawn in favor of the non-moving party and against the mov-ant. Swenson Trucking & Excavating, Inc. v. Truckweld Equipment Co., 604 P.2d 1113, 1116 (Alaska 1980). The burden of proving the absence of any genuine issues of material fact is upon the moving party. Champion Oil Co. v. Herbert, 578 P.2d 961, 963 (Alaska), cert. denied, 439 U.S. 980, 99 S.Ct. 565, 58 L.Ed.2d 650 (1978). It is only if the City established as a matter of law that Stanfill did not have a contractual right not to be dismissed under the Personnel Ordinance that the granting of summary judgment in favor of the City would be appropriate. Resolution of this case requires interpreting the provisions of the Personnel Ordinance that relate to the termination of employees from city employment. When interpreting these provisions, we are guided by the general principles of statutory construction. Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 454 (Alaska 1974). Accordingly, the relevant sections of the Ordinance must be construed so that each has meaning and the sections do not conflict with each other. Dresser Industries, Inc. v. Alaska Department of Labor, 633 P.2d 998, 1003 (Alaska 1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1982). A. "Layoff" as Defined by the Personnel Ordinance Section 2.523, Rule VII(5), of the Personnel Ordinance designates the permissible reasons for laying off an employee. Stan-fill's termination notice stated that he was laid off due to a "lack of work." Stanfill persuasively maintains that he was not laid off due to a lack of work because employees were still needed to maintain the treatment sewage facility where he was working. Stanfill argues that his termination was therefore not for a permissible reason under Rule VII(5). One of the permissible reasons for laying off an employee is that a "material change" has occurred in the "organization." Section 2.523, Rule VII(5). The City contends that the collective bargaining agreement negotiated with the union created a material change in the organization of the sewage treatment plant, justifying the laying off of employees. We disagree. The City presented no evidence to the superior court that the sewage treatment system underwent any material change in its organization as a result of the collective bargaining agreement. The only change that occurred as a result of the bargaining agreement was a change in the composition of the City's personnel. We therefore cannot find that the collective bargaining agreement created a change in the system's organization. Rule VII(5) specifies that an employee may be laid off if it is necessary because of a "shortage of funds or work, the abolition of the position, or other material changes in the duties or organization, or for related reasons which are outside the employee's control and which do not reflect discredit upon the service of the employee." (Emphasis added.) The City interprets "related reasons" as meaning any good reason, which it contends includes the collective bargaining agreement in this case. We disagree with this interpretation. We believe that "related reason" means exactly what it says — a reason related to any of the reasons previously set forth in the rule. Thus, Rule VII(5) permits an employee to be laid off only for reasons related to a "shortage of funds or work, the abolition of the position, or other material changes in the duties or organization." Stanfill was not laid off for any reason related to these designated reasons. In further opposition to the City's arguments, we note that Rule VII(5) permits the reassignment of duties performed by the laid-off employee to other employees "already working." Implicit in this provision is the notion that layoffs are justified by the occasional need to decrease the number of employees and to restructure the duties of the remaining employees. This provision does not authorize the City to lay off an employee for the sole purpose of replacing him with and reassigning his duties to an employee who has been previously terminated for going on strike. For these reasons, we find that Stanfill's layoff does not fall within the meaning of Rule VII(5) of section 2.523. B. Dismissal Within the Probationary Period Although Stanfill's termination notice reflected that he was "laid off," the City argues that Stanfill could have been dismissed without cause because he was still within his probationary period. Stanfill concedes that at the time he was terminated he was subject to the provisions relating to an employee's probationary period. Stanfill argues, however, that even during the probationary period, an employee may be dismissed only "for cause" relating to the employee's work performance. We agree with Stanfill that the Fairbanks Personnel Ordinance requires a dismissal within the probationary period to be for cause related to the employee's work performance. Sections 2.512 and 2.523 of the Personnel Ordinance set forth the provisions relating to an employee's probationary period. Section 2.512 states that all employees are subject to a probationary period of six months. Section 2.523, Rule VI(1), states that the object of the probationary period is to allow the employer an opportunity to "observe closely the employee's work" and "to reject any employee whose work performance does not meet required work standards." We interpret this provision as indicating that the reasons for the probationary period relate solely to the employee's ability to perform his duties. Section 2.512 grants to the employer the right to dismiss a probationary employee upon a determination that the employee is unable to perform his duties. Section 2.523, Rule VI(3), expressly provides for such dismissals: Dismissal. During the probationary period the department head may remove an employee who is unable or unwilling to perform the duties of the position satisfactorily or whose habits and dependability do not merit his continuance in the service. Any employee removed during the probationary period does not have the appeal rights outlined in Rule VII. Section 2.512 does not expressly state whether "cause" is required to terminate an employee; however, Rule VI(3) sets forth the reasons for which an employee may be dismissed: inability or unwillingness to perform the job or unsuitability for the position. Viewing this section in light of the objective of the probationary period, we conclude that the City may dismiss a probationary employee only "for cause." Rule VI(3) indicates that the cause for dismissal must be related to the employee's ability to perform his work or to his suitability for the position. This interpretation is supported by the Personnel Ordinance's definition of dismissal as "the separation from city employment for cause." Section 2.502(18). We recognize that section 2.523, Rule VI(3), states that probationary employees, upon dismissal, do not have any right of appeal or hearing. We do not, however, interpret this section's denial of such rights as authorization for dismissing employees for reasons unrelated to any cause. Based on our interpretation of sections 2.512 and 2.523, we conclude that the City of Fairbanks Personnel Ordinance requires dismissals within the probationary period to be for cause related to the employee's job performance. The reason given for Stan-fill's termination indicates that his termination was either without cause or for a cause unrelated to his ability to perform his designated duties. In view of this, we conclude that the superior court's order of summary judgment was improvidently granted. We therefore REVERSE and REMAND this case for further proceedings consistent with this opinion. . The Municipal Utilities System provides municipal services, including telephone, water, sewer, steam and electricity, to the City of Fairbanks. As a city employer, MUS's employment practices are subject to Personnel Ordinance No. 3786, which prescribes the personnel policies and regulations governing city employment. . Rule VII(5) of § 2.523 provides: Layoff. The department head, upon approval of the city manager, or his designee, may lay off an employee when he deems it necessary by reason of shortage of funds or work, the abolition of the position, or other material changes in the duties or organization, or for related reasons which are outside the employee's control and which do not reflect discredit upon the service of the employee. The duties performed by any employee laid off may be reassigned to other employees already working. . The City further argues that pursuant to AS 09.65.070(d)(2) Stanfill was barred from bringing his contract claim against the City because this section immunizes the City from liability. The statute provides in relevant part as follows: "(d) No action for damages may be brought against a municipality . if the claim . (2) is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality . whether or not the discretion involved is abused . " We find the City's argument to be without merit. We do not believe this statute was intended to or does immunize the City from liability for damages resulting from the City's failure to follow its own rules governing its relations with its employees. . In relevant part, § 2.512 states: "Probationary Period. The rules and regulations shall provide that all original and promotional appointments shall be for a probationary period of six (6) months for all employees . During this probationary period an employee may be dismissed at any time without right of appeal or hearing in any manner." . Section 2.523, Rule VI(1), states: Object. The probationary or working test period is an integral part of the examination process. It shall be utilized to observe closely the employee's work, to secure the most efficient adjustment of a new or promoted employee to his position, and to reject any employee whose work performance does not meet required work standards. . The City maintains that the word "dismissal" was not intended to be given the same meaning in the probationary section as it was in section 2.502. The City contends that probationary employees are "removable" without cause. Section 2.502(36) defines "removal" as "the separation of any employee on probation . " We find no support in this general definition for the City's position. Based on the specific probationary provisions and the consistent use of the word "dismissal" within them, we conclude that the drafters intended probationary employees to be "dismissed" pursuant to the guidelines set forth in the relevant provisions of the Personnel Ordinance.

10433835

Claire STRAND and Alaska State Commission for Human Rights, Appellants & Cross-Appellees, v. PETERSBURG PUBLIC SCHOOLS, Appellee & Cross-Appellant

Strand v. Petersburg Public Schools

1983-02-18

Nos. 5535, 5824

1218

1227

659 P.2d 1218

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ., and SHORTELL, Superior Court Judge.

Claire STRAND and Alaska State Commission for Human Rights, Appellants & Cross-Appellees, v. PETERSBURG PUBLIC SCHOOLS, Appellee & Cross-Appellant.

Claire STRAND and Alaska State Commission for Human Rights, Appellants & Cross-Appellees, v. PETERSBURG PUBLIC SCHOOLS, Appellee & Cross-Appellant. Nos. 5535, 5824. Supreme Court of Alaska. Feb. 18, 1983. Carolyn E. Jones, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for Alaska State Com’n for Human Rights, appellants and cross-appellees. Linda M. Cerro, Anchorage, for Claire Strand, appellant and cross-appellee. Mary E. Guss, Ziegler, Cloudy, Smith, King & Brown, Ketchikan, for appellee and cross-appellant. Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ., and SHORTELL, Superior Court Judge. Shorten, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

5161

33164

OPINION MATTHEWS, Justice. On June 20,1977 Claire Strand, a teacher for twenty-five years with the Petersburg Public Schools, filed a complaint with the Alaska State Commission for Human Rights alleging that she had been denied a position as an elementary school principal because of her sex. After a hearing and extensive briefing the Commission determined that a case of discrimination in violation of AS 18.80.220(a)(1) had been established. The Commission awarded Strand the difference between her salary and that of the elementary school principal, and ordered that Strand be hired to the next available administrative position for which she qualified. Petersburg Public Schools appealed to the superior court, and the superior court issued a memorandum of decision and order remanding the matter to the Commission with directions to enter an order dismissing the complaint. Strand and the Commission have appealed to this court. The circumstances giving rise to Strand's complaint were as follows. On April 12, 1977 the principal of Petersburg Elementary School announced that he would resign his post at the end of the school year. Several applications for the position were received, but due to an informal policy of promoting Petersburg teachers to fill administrative positions, the applications of Strand and Mel Stockton, a high school guidance counselor, were more strongly considered. The parties agree that both Strand and Stockton were qualified for the job, although their backgrounds and experience differed. The Petersburg School Board, which was responsible for hiring administrative personnel, ultimately selected Stockton to fill the principal's post. The question presented for review is whether the Commission correctly found that the Board's selection of Stockton in preference to Strand constituted illegal sex discrimination. The standard of review is whether the Commission's findings are supported by substantial evidence. Alaska USA Federal Credit Union v. Fridriksson, 642 P.2d 804, 808 (Alaska 1982); Alaska State Commission for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980). We conclude that the Commission's finding that Strand was the victim of discrimination is supported by substantial evidence, including (1) the evidence suggesting that the Board did not compare the personal qualities on which it relied in hiring the successful applicant, Stockton, with the same qualities of Strand, and (2) the evidence that there had been nine persons hired by the Petersburg Public Schools in the past twenty-five years to fill administrative positions, all of them men. Each of the foregoing bears discussion. FAILURE TO COMPARE THE QUALITIES OF THE APPLICANTS It is undisputed that there were only two formal requirements for the principal's job: a master's degree and a state-issued principal's certificate. The Board had no other guidelines or criteria to aid it in determining which of the two candidates should be selected for the job, and the four Board members expressed different reasons for selecting Stockton rather than Strand. Board members emphasized such attributes as "personality," "tact," "ability to deal with people," "character," and Stockton's rapport with teachers and parents and his leadership ability when explaining why they believed that Stockton was better suited for the principal's job than Strand. The Commission determined that the Board did not fairly compare the intangible personal qualities which it found so desirable in Stockton with the same qualities of Strand. The Commission's analysis is set forth here, for it bears not only on the matter of unequal consideration; it also tends to indicate that the reasons expressed by the Board members for prefering Stockton to Strand are mere rationalizations: School Board members claim to have based their decision to hire Stockton primarily on his "personality" and counsel-ling experience, finding that he had superior abilities in the areas of administration and working with students, teachers and parents. No comparison was made by the Board members with Strand's ability to work with students, teachers and parents. . When Board members considered the factors they liked in Mr. Stockton, there is no evidence that they asked themselves whether Claire Strand possessed comparable qualities.. . Board member Oines, for example, extolled Mr. Stockton's rapport with the children at • the elementary school (although Stockton had spent the last two years at the high school). There was no comment made regarding Strand's relationship with the students. Mr. Stockton's ability to get along well with the entire community was mentioned; the Board seemed to ignore the recommendation from Victor Guthrie purportedly setting forth Strand's concern for and ability to work well with the sizable Native community in Petersburg. Nor was Strand's relationship with the community at large explored. Similarly, while remarking on Stockton's ability to get along with teachers and perform administrative tasks, no evaluation was made by Board members regarding the effect in this regard of Strand's 25-year acquaintanceship with the Petersburg Elementary School, her three-year presidency of the local teachers' association and her general familiarity with administrative practices through course work, the Professional Teaching Practices Commission, union activities, etc. Wilmer Oines acknowledged that Strand's long teaching history was a "strong point" for her. He then attempted to discount that strength by referring to the Board's experience with Mel Hous-ley, a teacher who agreed, upon Board request, to fill a superintendent's position only to discover that his aptitude for administration was limited. Strand, of course, had actively sought the post, contrary to Housley. Stockton, moreover, had also "risen" from the teaching ranks. The important point — that Strand was intimately familiar with the children, teachers, routines, problems, strengths and weaknesses of the elementary school — was apparently not afforded much weight. The Commission cannot state that based on the applicants' respective qualifications Ms. Strand was more qualified and should have been selected. However, the Commission can and does find that the one-sided analysis apparently performed by the Board and presented at the hearing constituted an unlawful discriminatory practice.... The above discussion by the Commission is an accurate reading of the testimony presented. At the hearing the Board members did emphasize Stockton's leadership traits and his administrative abilities, while making almost no mention as to the presence or absence of comparable charae- teristics in Strand. It was permissible for the Commission to infer from this body of testimony that a one-sided consideration of the candidates' comparative qualities was performed. While that was not necessarily the only inference which might be drawn from the testimony, it was a reasonable one, and as such it may not be disturbed judicially. THE STATISTICAL EVIDENCE The Commission also found that nine principals and superintendents had been hired in the Petersberg Public Schools over the period of the past twenty-five years, none of whom were women. In Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978) this court stated that once a prima facie case of discrimination is established statistical evidence of a discriminatory pattern "is to be viewed as evidence that the non-discriminatory justification given by the defendant is in fact a pretext." Strand has established that the Board failed to make a fair comparison of her qualities with those of Stockton; that is more than sufficient to give rise to a prima facie case. The statistical evidence of a pattern of sex discrimination is therefore significant. The fact that no women have been hired casts in a suspicious light the reasons given by the Board members for preferring Stockton to Strand. If all school administrators have always been men there may have been an understandable tendency to conclude that women do not have the intangible qualities needed to be good administrators, simply because they are not men. Reliance on such factors as personality and leadership may be nothing more than a subconscious perpetuation of sexual stereotypes. The Commission explained quite well the application of this principle to this case: In the context of human rights law, the particular danger in relying on factors such as "personality , and to a lesser extent on such overbroad categories as ability to work with people and administrative competence, is that the vagueness of these considerations opens the door to discrimination, albeit perhaps, completely unintentional. In [Kinsey v. First Regional Securities, Inc., 557 F.2d 830, 838 (D.C.Cir.1977) ], a Black man applied to be a securities salesman with the respondent company; he was rejected. The record indicated that the company required that its sales personnel have the ability to "gain the confidence of prospective clients by exuding integrity, reliability and long-term service." Id. at 838. Such attributes are almost as vague as those at issue in this case. The court stated: An employer in a profession which traditionally has been white may unknowingly gauge a minority group applicant against the white stereotype, and conclude that he lacks the intangible qualities indicative of professional aptitude and competence.... Here, there is a real danger that given the fact that the positions of principal for both the elementary and high school, as well as the superintendent's position, have always been occupied by men, the Board may have been predisposed to find the attributes it was looking for in a man, rather than a woman. This danger was compounded by the lack of interviews with the applicants, and the fact that complainant's long tenure with the District as a teacher may have made it difficult for Board members to conceptualize her in an administrative role. They never discussed what plans either she or Mr. Stockton might have for improvements or changes in the current school program. CONCLUSION The Commission's decision is supported by substantial evidence. Its finding that the Board did not fairly compare the personality characteristics on which it relied in hiring Stockton with those of Strand is a permissible inference which tends to indicate sex discrimination. Further, the evidence that no woman had been hired as a principal or superintendent in Petersburg in twenty-five years supports the same conclusion. The evidence adduced by the Board as to its reasons for selecting Stockton rather than Strand consists of nothing more than vague generalizations concerning personality traits. That evidence is neither so powerful nor so persuasive as to render the evidence supporting the Commission's findings insubstantial in light of the entire record. Accordingly we reverse the decision of the superior court and reinstate the order of the Commission. REVERSED. . AS 18.80.220(a)(1) provides: (a) It is unlawful for (1) an employer to refuse employment to a person, or to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his race, religion, color or national origin, or because of his age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood!)] . From their personnel files, the following comparison of their backgrounds and experience can be made: STRAND STOCKTON Type A teaching certificate, elementary. Type A teaching certificate, secondary. Type B administrative certificate, principal. Type B certificate, principal. Eastern Washington State College, B.A., Math, 1935. University of Dayton, B.S., physical education, guidance and counselling, 1964. University of Alaska, M.A., education, 1976, with 3.75 grade point average. 60 additional hours. Central State University, M.A., education, 1968. 25 years elementary school teaching in Petersburg. Eight years high school teaching and counselling in Ohio. One year experience as swimming instructor in Petersburg. One year elementary school counselor in Petersburg. Two years high school counselor in Petersburg. Chairwoman of statewide Professional Teaching Practices Commission. President of local teachers' association since 1975. Member of teacher negotiating team. . Petersburg Public Schools also raises an issue as to whether the superior court abused its discretion in denying an award of costs and attorney's fees to it as the prevailing party in the intermediate appeal. In view of our decision on the merits we need not reach this question. . Strand's Type B' principal's certificate became effective August 1, 1977, nearly two months after the application closing date. However, the beginning date of employment for the principal's position was August 22, 1977, and Strand informed the Board that she would have a certificate by then. The departing elementary school principal had been hired under somewhat similar circumstances. It is thus apparent that Strand met the certification requirement. . The record also suggests that the Board failed to seek additional information to supplement Strand's application, which information would have furthered their comparison of the two applicants. For example, Stockton's superior, the high school principal, personally recommended Stockton to individual Board members, but the Board never inquired of Strand's superior. Strand's superior testified that, had he been asked, he would have recommended her. The Board's failure to seek additional information regarding Strand's application provides further support for the Commission's findings. See Alaska USA Fed. Credit Union v. Fridricksson, 642 P.2d 804, 808 (Alaska 1982). . The heart of the fact-finding process often is the drawing of inferences from the evidence. A fact finder may draw inferences from the words or gestures or inflections or demeanor of a particular witness, may infer a particular basic fact from the testimony of one or more witnesses on one side or on both sides, and may infer an ultimate fact from undisputed basic facts or from an entire record of conflicting evidence. The question for the reviewing court is thus whether the conclusions "reasonably may be based upon the facts proven." The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. 4 K. Davis, Administrative Law Treatise § 29.-05, at 137, 139 (1958) (footnote omitted). See also Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980): "[W]here the evidence is conflicting, the reviewing court will not reweigh the evidence and substitute its judgment for that of the trier of fact. Thus, the evidence should be viewed in favor of the findings even though the reviewing court might have taken a contrary view of the facts." (Footnotes omitted). . In Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980) this court adopted the four-part test developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973) as the standard for establishing a prima facie case under AS 18.80.220. Under the McDonnell Douglas test, to establish a pri-ma facie case of discrimination a claimant must show: (1) that she is a member of a protected class; (2) that she applied for and was qualified for the position; (3) that she was rejected despite her qualifications; and (4) that after her rejection the employer continued to seek a person with her qualifications. It is conceded that Strand meets the first three requirements of this test, but it is obvious that she cannot satisfy the fourth element. Her rejection occurred simultaneously wjth Stockton's selection. Nonetheless, the McDonnell Douglas test is not the sole means by which a claimant may raise an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677 n. 13; see also Hagans v. Andrus, 651 F.2d 622, 625 (9th Cir.1981), cert. denied, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981). A wide variety of evidentiary patterns may suffice to establish a prima facie case; the primary inquiry is whether a claimant has demonstrated circumstances which, if otherwise unexplained by the employer, make it appear likely that impermissible factors played a role in the employer's decision. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 967 (1978).

10429833

STATE of Alaska, Petitioner, v. Nicholas Z. RASTOPSOFF, Respondent

State v. Rastopsoff

1983-03-04

No. 6295

630

641

659 P.2d 630

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, v. Nicholas Z. RASTOPSOFF, Respondent.

STATE of Alaska, Petitioner, v. Nicholas Z. RASTOPSOFF, Respondent. No. 6295. Court of Appeals of Alaska. March 4, 1983. David Mannheimer, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for petitioner. Joel H. Bolger, Asst. Public Defender, Barrow, and Dana Fabe, Public Defender, Anchorage, for respondent.

6422

40733

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. BRYNER, Chief Judge. In this case the State of Alaska seeks review of an order entered by the superior court's three-judge sentencing panel holding that Alaska's presumptive sentencing statutes are unconstitutional as applied to respondent, Nicholas Z. Rastopsoff. We have granted review because the three-judge sentencing panel's ruling involves a significant question of law as to which a substantial ground for difference of opinion exists, and because immediate review will advance an important public interest. See Alaska R.App.P. 402(b)(2). During the summer of 1980, Nicholas Rastopsoff engaged in three separate episodes of criminal misconduct: On June 4, 1980, he committed a forgery; on August 26,1980, he burglarized a trailer and robbed its occupant of some traveler's checks and some coins; on September 13,1980, he burglarized a house and threatened its occupant with a knife. For the June 4 offense the state charged Rastopsoff with forgery in the second degree, a class C felony; for the August 26 incident he was charged with burglary in the first degree and robbery in the second degree, both class B felonies; for the September 13 incident he was charged with assault in the third degree, a class C felony, and burglary in the first degree. On October 27, 1980, after being indicted for all five offenses, Rastopsoff pled guilty to the June 4 forgery. He was sentenced to two years in jail, with one and one-half years suspended. This was Rastopsoff's first felony conviction. On February 24, 1981, Rastopsoff pled nolo contendere to the charges involving the offenses of August 26 and September 13, 1980. Superior Court Judge Roy H. Madsen ruled that, because of Rastopsoff's conviction for the June 4 forgery, the presumptive sentencing provisions of the Alaska statutes applied to him. Judge Madsen ruled that, for purposes of presumptive sentencing, the charges stemming from Rastopsoff s August 26 offenses should be treated as second felony convictions and charges from the September 13 offenses should be treated as third felony convictions. Nevertheless, Judge Madsen found that imposition of presumptive second and third offense sentences was uncalled for and would result m manifest injustice. Because he could find no specific mitigating circumstances applicable to Ras-topsoff, Judge Madsen referred this ease to the superior court's three-judge sentencing panel in accordance with AS 12.55.165 and 12.55.175. Like Judge Madsen, the three-judge panel interpreted the presumptive sentencing statutes to apply to Rastopsoff's case, holding that it was required to consider the August 26 offenses as second felony convictions and the September 13 crimes as third felony convictions, even though Rastopsoff had committed all of his offenses before any charges had been filed against him. However, the panel ruled that the presumptive sentencing statutes, as applied to Ras-topsoff's case, violated the equal protection clause of the Alaska Constitution. The panel held, in pertinent part: [T]he purpose of the statutory scheme in question is to deter offenders from further violations of the law by means of presumptive sentencing provisions which incorporate aspects of both. reformation and vindication. The crux of the issue at hand is whether it is a violation of the equal protection clause to allow the opportunity of reformation only to those offenders who commit crimes at a pace slow enough to be convicted of each crime before the next one is committed, while denying the opportunity of reformation to others who may commit two or more crimes at a pace so rapid . . . that the prosecutor cannot reduce one to a conviction before the next is committed. That is, may these provisions be constitutionally valid when the only criterion separating the exercise of either reformatory punishment or vindictive punishment is the speed at which the offender commits a series of crimes? It is apparent that the distinction between the punishment provided by [the presumptive sentencing provisions of the Alaska statutes] to each of these types of offenders, as illustrated by Rostopsoff's [sic] ease, bears no reasonable relationship to the purpose of conforming the statute to the likelihood of recidivism. For this reason the presumptive sentencing provisions as applied to this defendant violate his right of equal protection under the test required by Art. 1, sec. 1, Constitution of Alaska. Therefore, the defendant may not be treated as a repeat felon for presumptive sentencing in either case . In order to meet the Alaska constitutional guarantee of equal protection a felony conviction which is to be considered as a second or third conviction for the purpose of presumptive sentencing must be for the commission of a felony which was committed after the defendant has been sentenced on a prior felony or has been given a suspended imposition of sentence on a prior felony. The state seeks to uphold the three-judge panel's decision insofar as it concluded that Rastopsoff was subject to presumptive sentencing as a second felony offender for his crimes of August 26, 1980, and as a third felony offender for his crimes of September 13, 1980. The state only disputes the panel's conclusion that Rastopsoff's equal protection rights would be violated by imposition of presumptive sentences. Rastopsoff, for his part, argues that the three-judge panel's interpretation of applicable presumptive sentencing statutes was incorrect; he maintains that a proper interpretation of these statutes would preclude him from being sentenced as a second or third felony offender unless the conviction for his first felony preceded commission of his second and third felonies. Rastopsoff alternatively argues that the three-judge panel's constitutional ruling must be affirmed. Because we agree with Rastopsoff that disposition of this ease is governed by interpretation of the presumptive sentencing statutes, we do not reach the equal protection question decided by the three-judge panel. The Alaska Revised Criminal Code, which went into effect a short time before commission of the crimes at issue in this case, creates four basic categories of felony offense: unclassified felonies, class A felonies, class B felonies, and class C felonies. Unclassified felonies encompass the most serious of felony offenses, including murder and kidnapping; violent crimes involving deadly force or the threat of a serious physical injury have generally been designated as class A felonies; less serious crimes of violence and serious property crimes were designated as class B felonies; and less serious offenses are class C felonies. See AS 11.81.250. The basic sentencing structure governing these four categories of offenses is contained in AS 12.55.125. This section, as originally enacted, set out permissible sentencing ranges for unclassified and class A, class B and class C felonies; with the exception of unclassified felonies and some categories of class A felonies, the section generally permits a broad range of discretion to sentencing judges in cases involving first offenders. However, for second and subsequent felony convictions, AS 12.55.125 adopts the more restrictive concept of presumptive sentencing, requiring offenders to be sentenced to a presumptive term unless specific aggravating or mitigating factors exist or unless manifest injustice would result from imposition of a presumptive term. Relevant portions of AS 12.55.125 provide: (c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155-12.55.175: (1) If the offense is a first felony conviction, other than for manslaughter, and the defendant possessed or used a firearm or caused serious physical injury during the commission of the offense, six years; (2) If the offense is a second felony conviction, 10 years; (3) If the offense is a third felony conviction, 15 years. (d) A defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 10 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155-12.55.175: (1) If the offense is a second felony conviction, four years; (2) if the offense is a third felony conviction, six years. (e) A defendant convicted of a class C felony may be sentenced to a definite term of imprisonment of not more than five years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155-12.55.175: (1) If the offense is a second felony conviction, two years; (2) if the offense is a third felony conviction, three years. The terms "first felony conviction," "second felony conviction" and "third felony conviction," are defined in AS 12.55.-185(6), (7), and (8): (6) "first felony conviction" means that the defendant has not been previously convicted of a felony; (7) "second felony conviction" means that the defendant previously has been convicted of a felony; (8) "third felony conviction" means that the defendant has been at least twice previously convicted of a felony; These definitions do not specify whether the number of times a defendant has been "previously convicted of a felony" must be determined by counting prior convictions existing when the defendant committed the offense for which he is being sentenced or by counting all convictions entered prior to sentencing. As both parties in this case readily acknowledge, the ambiguity of these definitions is virtually identical to the ambiguity in the statutory language that was at issue in State v. Carlson, 560 P.2d 26 (Alaska 1977). In Carlson, the supreme court dealt with Alaska's former habitual criminal statute, AS 12.55.050, which established a system of progressively increasing penalties for persons convicted of a felony who had "previously been convicted" of one, two, or three felonies. The issue in Carlson was whether two prior felony convictions that had been entered on the same day could be counted separately for the purpose of determining the number of times the defendant had previously been convicted, within the meaning of AS 12.55.050, when the defendant committed and was convicted of a subsequent crime. The state's position in Carlson was that the number of felony convictions on a defendant's record at the time of his conviction for a new offense should be the only determinative factor under the habitual offender statute. In response to this argument the court held: [A] reading of the statute as a whole leads us to the conclusion that it is the accumulation of prior offenses, indicating the defendant has not reformed his behavior, rather than merely the gross number of offenses, which should be determinative of habitual criminal status. Moreover, there are sound policy reasons for requiring each prior offense and conviction to fall in sequence in order to accumulate under AS 12.55.050. [The de fendant] points outs [sic], and the state acknowledges, that when a convicted criminal has not taken advantage of the opportunity to reform and subsequently commits another crime, he may be considered a worse offender than one with no previous convictions. It is then reasonable to subject him to harsher sanctions. However, where, as in the case of [this defendant], two convictions occur on the same day, the opportunity for reformation is afforded to him only once, not twice. We believe that such a literal reading of AS 12.55.050 [as argued for by the state] would distort the underlying purpose of this statute and would be inconsistent with the principle that habitual criminal statutes are to be strictly construed in favor of the defendant. State v. Carlson, 560 P.2d at 30 (citation omitted). The decision in Carlson was announced well before the Alaska legislature decided to use identical language to define "first felony conviction," "second felony conviction," and "third felony conviction" in the new presumptive sentencing scheme. Under settled principles of statutory construction, when a legislature adopts specific statutory language that has previously been interpreted by the high court of the state in connection with other statutes involving a similar subject matter, the legislature is presumed to have intended to adopt the court's interpretation of that language, unless otherwise expressly indicated. See Hafling v. Inlandboatmen's Union of Pacific, 585 P.2d 870, 875 (Alaska 1978). The state nevertheless contends that AS 12.55.145, a provision that limits the circumstances under which prior convictions may be considered for the purposes of imposing a presumptive sentence, requires a departure from the rule of Carlson. The state emphasizes AS 12.55.145(a)(3) and the commentary to this provision. AS 12.55.-145(a)(3) states: Prior Convictions, (a) For purposes of considering prior convictions in imposing sentence under this chapter (3) two or more convictions arising out of a single, continuous criminal episode during which there was no substantial change in the nature of the criminal objective are considered a single conviction. . The commentary to this section states, in relevant part: Subsection (a)(3) provides that two or more convictions arising out of a "single, continuous criminal episode" are to be considered a single conviction unless there was a "substantial change in the nature of the criminal episode [sic, objective]." The phrase "single, continuous episode" is intended to limit the applicability of this provision to a single criminal event out of which a number of offenses could be charged. For example, the breaking and entering of a building with the intent to commit theft, which can be charged as burglary, and the taking of property in the building which can be charged as theft. In such an instance, convictions for both burglary and theft would be considered a single conviction under this section. However, the conviction of three burglaries involving three buildings in a single day, would not be considered part of a "single, continuous criminal episode [sic, objective]." Similarly, the phrase "substantial change in the nature of the criminal objective" is intended to limit the applicability of the provision to a single criminal objective. In the preceding example, the criminal objective is to obtain property and the breaking and entering is an incident of that objective. However, assume that the defendant takes a hostage to facilitate his flight, and then decides to commit a sexual assault on the hostage. He is subsequently convicted of burglary, theft, kidnapping and sexual assault. In such a circumstance the defendant would have been convicted of three prior offenses for purposes of this section, burglary-theft, kidnapping and sexual assault. . Commentary on the Alaska Revised Criminal Code, 2 Senate Journal Supp. No. 47 at 157-58 (1978). It is the state's contention that AS 12.55.-145(a)(3) and its commentary establish the legislature's desire to have all criminal convictions that were entered against a defendant before his most recent conviction separately counted as prior convictions for purposes of presumptive sentencing; the only exception would be for multiple convictions arising out of a single, continuous criminal episode. The state argues, furthermore, that even in cases such as the present one, where two convictions are simultaneously entered for crimes that do not arise from a single criminal episode, the offense that was committed first in time must be counted as a prior conviction for the purpose of sentencing on the second offense. While we agree with the state that subsection (a)(3) must be read to alter the rule adopted in State v. Carlson, we believe it is necessary to adopt a more restrictive interpretation of this provision than the one suggested by the state. Initially, we think that the plain language of AS 12.55.-145(a)(3), as well as that of AS 12.55.185(6), (7), and (8), requires rejection of the state's suggestion that, when convictions for multiple offenses are simultaneously entered, those committed earlier in time must be deemed prior convictions as to those committed at a later time. In this regard, the state has argued: In cases such as this, where the defendant enters pleas at the same time to two offenses committed at different times, it is proper to treat the chronologically earlier offense as the first of the two (regardless of the actual order in which the pleas were received by the court at the hearing). The state cites no authority for this proposition, and indeed it seems that there is none. If the provisions of AS 12.-55.145(a)(3) and those of AS 12.55.185(6), (7), and (8) are clear and unambiguous as to anything, it is that the legislature chose to rely on the number of a defendant's prior convictions to determine the presumptive sentence he should receive. Yet, when simultaneous convictions are entered for offenses arising out of more than one criminal episode, one conviction cannot realistically be characterized as having been entered prior to the other. In the absence of express statutory authorization, we cannot conclude that one of several simultaneously entered convictions should be deemed a prior conviction simply because the conduct it involved occurred before the conduct involved in the other convictions. Under the plain terms of the statutes, one conviction must precede the next before presumptive sentencing can apply. Moreover, a close reading of AS 12.55.-145(a)(3) does not support the position that all felony convictions entered before entry of a defendant's most recent conviction must be counted as prior convictions for the purposes of presumptive sentencing. When read in context, subsection (a)(3) simply does not address the issue of whether a conviction must occur before commission or before conviction of a new offense in order to be counted as a prior conviction. Nor does the subsection indicate how multiple convictions that are simultaneously entered should be treated among themselves. Instead, it addresses only the problem of when multiple prior convictions must separately be counted in imposing sentence on a later offense. This is clear from that portion of the commentary to subsection (a)(3) which states that a defendant convicted of three crimes arising from separate criminal episodes "would have been convicted of three prior offenses for purposes of this section ." 2 Senate Journal Supp. No. 47 at 158 (1978) (emphasis added). Since a defendant could not be guilty of three prior offenses under these circumstances unless he was also convicted of a subsequent offense, the drafters of subsection (a)(3) evidently viewed it as setting out the correct procedure for counting multiple, simultaneously entered convictions for purposes of imposing sentence on a subsequent offense. This conclusion is supported by a reading of AS 12.55.145(b) and (c). Subsection (b) requires the state to prove all prior convictions by serving authenticated copies of judgments on the defendant at least ten days before sentencing; subsection (c) requires that, if a defendant is going to deny any conviction shown by an authenticated copy of a prior judgment, he must do so at least five days before sentencing. There is nothing in AS 12.55.145 to indicate that the legislature ever contemplated any need to relax these notice requirements for cases involving simultaneous judgments of conviction or judgments of conviction entered within ten days of a sentencing date. We are persuaded after a close reading of AS 12.55.145 and its related commentary that subsection (a)(3) clearly expresses an intent by the legislature to require all felony convictions not arising from a single, continuous criminal episode to be separately counted for the purpose of imposing a presumptive sentence in the event of a subsequently committed crime, even if the convictions were simultaneously entered. To this extent, subsection (a)(3) departs from the rule adopted by the Alaska Supreme Court in State v. Carlson, since the rule in Carlson specifically required the conviction for one offense to be entered prior to commission of the next offense before both could be separately considered as prior convictions in any subsequent case. We are convinced, however, that subsection (a)(3) provides no insight to the separate question of when a conviction must be entered in order to be deemed a prior conviction; that is, whether all felony convictions entered against a defendant before conviction for his current offense should be deemed prior convictions or whether only those convictions entered prior to the commission of the current offense should be counted. As to this separate question, subsection (a)(3) suffers from the same uncertainty as AS 12.55.125 and AS 12.55.185(6), (7) and (8). We find nothing in AS 12.55-145(a)(3) that could be construed as an unambiguous statement that the legislature intended a wholesale abandonment of the Carlson rule. The state urges, however, that the legislature's intent to abandon the Carlson rul ing may be inferred from the nature and purposes of the presumptive sentencing statutes. The state contends that, because presumptive sentences do not expose defendants to the drastic sentencing increases that typified habitual criminal statutes such as AS 12.55.050, the policies supporting the rule of State v. Carlson are largely inapplicable to presumptive sentencing. The state also maintains that the Carlson rule is inconsistent with the presumptive sentencing scheme's reliance on the "just deserts" theory of sentencing, whereby the primary goal of repeat offender sentencing is to ensure sentences uniformly reflecting the seriousness of the conduct for which offenders have been convicted. Rastopsoff responds to the state's arguments by asserting that the legislative history of the presumptive sentencing statutes supports the view that abandonment of the Carlson rule was not intended. He further alleges that there is no necessary inconsistency between the "just deserts" theory of sentencing and the Carlson rule. Finally, Rastopsoff argues that, assuming the legislature intended to adopt a standard entirely different from the rule contained in State v. Carlson, it has failed to make its intent sufficiently clear. We recognize that the presumptive sentencing provisions of the revised criminal code mark a significant departure from traditional habitual criminal statutes. The state correctly notes that the potential consequences of presumptive sentencing to repeat offenders are far less draconic than the consequences prescribed in former AS 12.55.050. Under the presumptive sentencing statutes, repeat offenders can only be sentenced to prison terms within the limits of the same maximum term as that applicable to first offenders convicted of the same class of felony. Nevertheless, the policies that led the supreme court to its decision in State v. Carlson are not inapplicable to presumptive sentencing simply because of the more moderate terms of its penal provisions. The Alaska Supreme Court has not hesitated to apply the Carlson rule to penal statutes which were less severe than the habitual criminal provisions of former AS 12.55.050. In Gonzales v. State, 582 P.2d 630, 636 (Alaska 1978), the court applied Carlson's reasoning to the sentencing provisions of former AS 17.10.200, which prescribed an increase in the maximum penalty for a second narcotics-related conviction from ten years to twenty years. Finding that the purpose of the increased penalty provisions was to subject persistent offenders to greater sanctions than those convicted only once, the court ruled in Gonzales that the second-offender provisions of AS 17.10.200 would apply only if conviction for the initial offense occurred prior to commission of the subsequent offense. Id. See also Gonzales v. State, 593 P.2d 257, 260-62 (Alaska 1979). Similar conclusions have been reached by other courts, even as to statutes that did not provide for increased maximum penalties. For example, in State v. Simmons, 258 N.W.2d 908, 910 (Minn.1977), the court held that provisions of a statute increasing the minimum term for a second or subsequent felony could be applied only if the initial conviction was entered before commission of the subsequent offense. Moreover, with the exception of the limited changes incorporated into AS 12.55.-145(a)(3), the legislative history of the presumptive sentencing statutes fails to sup port the state's claim that abandonment of the Carlson rule was intended. To the contrary, as the state concedes, the Tentative Draft of the Alaska Criminal Code Revision, prepared by the Criminal Code Revision Subcommission and introduced in the 1978 Alaska legislature as House Bill 661, affirmatively indicated in its commentary that the Subcommission was well aware of the holding in Carlson and intended to adhere to the construction of "previously convicted" adopted in that decision. See Alaska Criminal Code Revision, Tentative Draft, Part 6 at 71-72, 79-80 (1978). The Tentative Draft contained provisions substantially similar to AS 12.55.145(a)(3); it also included definitions of prior felony convictions which were essentially identical to those now contained in AS 12.55.185(6), (7) and (8) and to those previously contained in AS 12.55.050. Although the Tentative Draft was subjected to considerable revision by the House Judiciary Committee— which produced C.S.H.B. 661 (April 1978)— and by the Senate Judiciary Committee— which produced S.C.S. C.S.H.B. 661 (June 1978) — the revisions focused almost exclusively on expanding the concept of presumptive sentencing to all classes of offenses and on reducing the range of discretion permitted to judges in imposing pre- sumptive terms. Apparently no discussion of the definition of prior convictions occurred in either the House or Senate Judiciary Committees or on the floor of either body. Thus, despite changes in other areas, the definitions of first, second and third felony convictions contained in AS 12.55.-185(6), (7), and (8), have remained essentially unchanged from those originally proposed in the Subcommission's Tentative Draft. It is well settled that the report of a commission on a revision of statutory law provides evidence of legislative intent. 2A C. Sands, Sutherland on Statutory Construction § 48.09 at 208 (4th ed. 1973). In this case, forceful indicators that the legislature, in adopting presumptive sentencing, did not intend total abandonment of the Carlson rule may be found in: (1) the undisputed intent of the Criminal Code Revision Subcommission to adhere, in large measure, to the basic rule adopted in Carlson; (2) the lack of any significant change between the definition of prior convictions contained in the Tentative Draft and the definitions enacted in AS 12.55.185(6), (7), and (8); and (3) the lack of any discussion — in either house of the legislature — to indicate rejection of the Subcommission's interpretation of these definitions. The Criminal Code Revision Subcommission's commentary is also dispositive of the state's claim that the "just deserts" theory of sentencing is inconsistent with preservation of the rule adopted in State v. Carlson. Although the Tentative Draft was subjected to significant amendments in both the House and Senate prior to enactment, the commentary to the Tentative Draft demonstrates that the Subeommission viewed its proposal as espousing the "just deserts" theory of sentencing but did not consider "just deserts" to be antithetical to application of the Carlson rule: The Subcommission then considered how to treat prior offenses as those offenses would relate to automatic increases in sentences upon conviction. This issue arose in the context of what constituted a "prior" offense for the purpose of determining automatic heavier sentencing. . The Subeommission concluded that if the offender had been convicted previously of the same or a more serious class of offense, he more likely would have been alerted to the seriousness of his conduct than he would have been had the prior conviction been for a less serious offense. Having failed to learn from the prior experience, it would be fair to conclude as did the Subcommission, that the person "justly deserved" no further breaks. This decision was translated, in technical terms, into the definitions of first, class A felony offenders; second, class A felony offender, etc., contained in article 11 and discussed in the accompanying commentary. Alaska Criminal Code Revision, Tentative Draft, Part 6, at 71-72 (1978) (emphasis added). As reflected in this passage, the Subcommission, although adhering to the "just deserts" model, concluded that there was a substantial interest in applying the enhanced sanctions of presumptive sentencing only to those offenders who had been alerted by a prior conviction, but who failed to respond by conforming their conduct to the law. In summary, although the provisions of AS 12.55.145(a)(3) express a clear intent by the legislature to alter the Carlson test to a limited extent — by allowing separate consideration of all convictions entered before commission of the defendant's current offense, regardless of whether each prior offense was separated from the next by an intervening conviction — we find nothing in the express language of the sentencing provisions, in the legislative history of those provisions, or in the policies underlying the presumptive sentencing structure that would warrant a conclusion that the rule in State v. Carlson has been entirely abandoned. As we said in Cassell v. State, 645 P.2d 219, 222 (Alaska App.1982), "ambiguities in penal statutes must be narrowly read and construed strictly against the government." See also Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); 3 C. Sands, Sutherland on Statutory Construction § 59.03 at 6-8 (4th ed. 1974). In considering an issue similar to the one presented in this case, the Minnesota Supreme Court has held: [I]n the area of minimum and extended sentences the legislature has an obligation to state its objectives as clearly as possible. When it cannot be said with certainty that the legislature intended to authorize the imposition of a minimum term or an extended term in a particular situation, the presumption must be that the legislature did not intend to do so. State v. Simmons, 258 N.W.2d at 910. Here, the legislature has enacted a statute perpetuating the same ambiguous terminology that was construed in State v. Carlson. We are justified in departing from the holding in Carlson only to the extent that the legislature has expressly indicated an intent to alter the rule announced in that case. Because Rastopsoff's three separate criminal episodes occurred in close proximity and his convictions were entered after all of the offenses had been committed, he cannot be deemed to be a second felony offender under AS 12.55.125 and AS 12.55.185. The sentencing court may give Rastopsoff a separate sentence for each offense arising from a separate criminal episode, and in so doing it may in its discretion choose to impose the sentences consecutively. AS 12.55.025(e). However, each offense must be treated as a first felony conviction for purposes of presumptive sentencing. In light of our decision, it is unnecessary for us to reach the constitutional issue determined by the three-judge sentencing panel. We reverse the decision of the three-judge panel to the extent that it adopts an interpretation of the presumptive sentencing statutes that is inconsistent with our holding; however, we affirm the panel's decision to remand this case to Superior Court Judge Roy H. Madsen in order to allow sentencing of Rastopsoff as a first felony offender. This case is REMANDED to the superior court for further proceedings consistent herewith. . Since its original enactment, AS 12.55.125 has been amended However, recent amendments to AS 12.55.125 are not applicable in this case. In discussing sentencing provisions of the revised code, we will refer to the language applicable when Rastopsoff's offenses were committed. . See AS 12.55.155 (setting out specific aggravating and mitigating factors, as well as procedures relating to adjustment of presumptive terms when aggravating and mitigating factors are found). . See AS 12.55.165 and 12.55.175 (providing for establishment of a three-judge sentencing panel and for referral of cases to the three-judge panel in cases where the sentencing judge determines that manifest injustice would result from imposition of a presumptive term). . Former AS 12.55.050, which was repealed by the Alaska Revised Criminal Code, 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 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. (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. [Emphasis added.] . See also Zerbe v. State, 583 P.2d 845, 846 (Alaska 1978); Nicholson v. Sorenson, 517 P.2d 766, 770 & n. 9 (Alaska 1973); City of Fairbanks v. Schaible, 375 P.2d 201, 207 (Alaska 1962). . For example, Arizona Revised Statutes § 13— 604(H) is similar in terms to AS 12.55.145(a)(3), but the Arizona provision expressly authorizes one simultaneously entered conviction to be considered as a "prior conviction" for the purpose of imposing an enhanced sentence as to another. A.R.S. § 13-604(H) provides: Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes, may, at the discretion of the state, be counted as prior convictions for purposes of this section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section. . The commentary to AS 12.55.125 is also relevant: If the defendant is being sentenced for a class A felony and has one prior felony conviction, a presumptive term of imprisonment of 10 years is specified. "Second felony conviction" is defined in § 12.55.185(b) [sic, AS 12.55.185(7)]. Conviction of any prior felony, whether the same, higher or lower class than the felony for which the defendant is being sentenced, will make the defendant a repeat felon for presumptive sentencing. Section 12.55.145, discussed infra, delineates the procedures for determining when prior felonies may be considered for purposes of this section. 2 Senate Journal Supp. No. 47 at 154 (1978) (emphasis added). The relevant language states "when prior felonies may be considered," and not "when felonies may be considered prior felonies." This choice of wording in the commentary is significant, since it indicates that the drafters recognized that AS 12.-55.145 did not deal with the question of when a conviction could be deemed to be a prior conviction, but believed it to deal more specifically with the question of when prior convictions could be counted for presumptive sentencing purposes. Implicit in the commentary's focus on "prior convictions" is the assumption that a subsequent conviction exists. . Thus, AS 12.55.005, which lists factors to be considered in imposing a sentence under the revised code, states: "The court shall consider (1) the seriousness of the defendant's present offense in relation to other offenses . " The commentary to AS 12.55.005 provides, in relevant part: Paragraph (1) requires the court to consider the seriousness of the offense as compared with other offenses; this consideration reflects the "just deserts" theory of punishment, which holds that justice requires that a sentence imposed on a defendant should be based on the crime he committed rather than on speculation as to his future behavior. The commentary goes on to state: "In sentencing repeat felons, however, paragraph (1) will be of primary importance . " 2 Senate Journal Supp. No. 47 at 148^9 (1978). . Thus, the Tentative Draft provided, in section 11.36.300: Prior Convictions, (a) For purposes of considering prior convictions in imposing sentence under this chapter, (3) Two or more convictions arising out of a single substantially contemporaneous course of criminal conduct are considered a single conviction . The Tentative Draft contained a version of presumptive sentencing that applied only to defendants convicted of second or subsequent felonies of the same class as or of a higher class than the felony for which the current sentence was to be imposed. Thus, for example, Tentative Draft section 11.36.270(b) provided: (b) A defendant convicted of a class A felony (1) may be sentenced to a definite term of imprisonment for a first, class A felony for not more than 15 years; (2) shall be sentenced to a definite term of imprisonment within a presumptive range of seven or more but less than 11 years for a second, class A felony subject to adjustment as provided in (e) and (f) of this section; (3) shall be sentenced to a definite term of imprisonment with a presumptive range of 11 or more but less than 18 years for a third or subsequent, class A felony subject to adjustment as provided in (e) and (f) of this section. [Emphasis added.] Corresponding definitions were contained in Tentative Draft sections 11.36.330(4), (9) and (13), which provided: (4) "First, class A felony" means that the defendant has not been previously convicted of a class A felony; (9) "Second, class A felony" means that the defendant has previously been convicted of a class A felony; (13)' "Third or subsequent class A felony" means that the defendant at least twice has been previously convicted of a class A felony; [Emphasis added]. . The state relies heavily upon State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (Ariz.1980), to support its position. In Hannah, the Arizona Supreme Court interpreted statutory language providing for increased sentencing of defendants "previously convicted" of other felonies to require that all felony convictions entered before conviction of the current offense be counted as prior convictions. Hannah is readily distinguishable from the present case, however. In Hannah, the sentencing provisions under consideration had repealed preexisting legislation that expressly restricted enhanced sen-fencing to cases in which a prior conviction had been entered against the defendant before commission of the subsequent offense. Thus, the court in Hannah viewed the legislature's decision to use the language "previously convicted" as a significant change in preexisting law. Moreover, Arizona's statutory scheme contained express provisions allowing convictions of one or more offenses consolidated for disposition to be considered as prior convictions for purposes of sentencing on other offenses joined in the same charge. Id. at 528-29. See note 6, supra. . In keeping with our interpretation of AS 12.55.145(a)(3), however, if Rastopsoff were to commit another felony, then upon conviction he would be subject to sentencing as a fourth felony offender. See, Linn v. State, 658 P.2d 150, (Alaska App., 1983). Our interpretation of AS 12.55.145(a)(3) is consistent with that advanced by Rastopsoff and no claim has been raised that this interpretation would be subject to the type of constitutional infirmity which was discussed by the three-judge sentencing panel in its decision of this case.

10433512

ABM ESCROW CLOSING AND CONSULTING, INC., Petitioner, v. MATANUSKA MAID, INC., Respondent

ABM Escrow Closing & Consulting, Inc. v. Matanuska Maid, Inc.

1983-02-18

No. 6457

1170

1175

659 P.2d 1170

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ABM ESCROW CLOSING AND CONSULTING, INC., Petitioner, v. MATANUSKA MAID, INC., Respondent.

ABM ESCROW CLOSING AND CONSULTING, INC., Petitioner, v. MATANUSKA MAID, INC., Respondent. No. 6457. Supreme Court of Alaska. Feb. 18, 1983. Harold W. Tobey, Michael Dundy, Bogle & Gates, Anchorage, for petitioner. Eric L. Hanson, Abbott, Lynch & Farney, Anchorage, for respondent. Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ.

3014

18097

OPINION RABINOWITZ, Justice. I. Background. A petition for hearing was granted in this matter to consider an appellate decision of the superior court. The superior court, reversing the district court, held that ABM Escrow Closing and Consulting, Inc. (ABM), which handled the sale of an Anchorage A & W restaurant, is liable to one of the restaurant's creditors for failing to pay that creditor's account from the proceeds of the sale of the restaurant. The issue before us is whether Article 6 of the Uniform Commercial Code (Bulk Transfers) applies, directly or by estoppel, to the sale of the restaurant. We conclude that it does not, and accordingly we reverse. In early 1979, ABM acted as escrow agent for the sale of an A & W restaurant. The restaurant's sellers gave ABM a list of the restaurant's creditors, one of which was respondent Matanuska Maid; ABM then sent the named creditors a notice which is the center of controversy in this case. The notice provided in pertinent part that "[t]his is to give notice as required by the Alaska Statutes governing Bulk Sales that a bulk transfer of the [restaurant] is about to be made.... All debts of the transfer-ors are to be paid in full.... All bills should be sent to ABM.... " Matanuska Maid received a copy of this notice on January 29, 1979 but did not contact ABM until almost five months later. Between April 13, 1979 and May 1979, ABM paid all the debts of the restaurant's other creditors and apparently disbursed the remaining sale proceeds to the sellers. On June 20, Matanuska Maid's controller contacted ABM to inquire about payment; ABM informed him that the sale proceeds had long since been disbursed. Matanuska Maid then sued ABM and the sellers for the amount of the debt, about $1,600; only ABM's liability is at issue on review. Matanuska Maid argues that ABM is liable for the debt because Article 6 required that the debt be paid from the proceeds of the sale of the restaurant. Alternatively, Matanuska Maid contends that if Article 6 does not of its own force require payment, the requirements of the Article nonetheless are applicable by estoppel because ABM's notice to creditors expressly stated that notice was being given "as required by the Alaska Statutes governing Bulk Sales." After a bench trial, the district court ruled in favor of ABM; on appeal the superior court agreed with the district court that Article 6 is not applicable to the sale of a restaurant, but concluded that ABM nonetheless was liable because Article 6 applied by estoppel. II. Article 6 and Sales of Restaurants. Article 6 applies to "a transfer in bulk and not in the ordinary course of the transferor's business of a major part of the [business's] materials, supplies, merchandise or other inventory" if the enterprise is one "whose principal business is the sale of merchandise from stock." If a transfer is within the purview of Article 6, the buyer must obtain a list of the business's creditors from the seller and give those creditors notice of the pending transfer. In addition, Alaska, unlike many states, has adopted a further provision which gives creditors the right to be paid from the proceeds of the transfer. In our view, however, the requirements of Article 6 are inapplicable in this case because the sale of a restaurant is not the kind of transaction to which Article 6 is intended to apply. We note first that the official comments accompanying Article 6 expressly state that restaurants are excluded from the Article. Although the official comments are not necessarily controlling in interpreting the scope and intent of the Uniform Commercial Code provisions, they are "of persuasive assistance" in construing and applying the Code. Morrow v. New Moon Homes, Inc., 548 P.2d 279, 287 n. 24 (Alaska 1976). Second, virtually every court that has considered the question has concluded that Article 6 does not apply to sales of restaurants. Although precedent from other jurisdictions is, of course, not binding upon us, we nonetheless are mindful of the fact that a basic objective of the Uniform Commercial Code is to promote national uniformity in the commercial arena and that this objective would be undermined should we decline to follow the stated intent of the Code's drafters and the reasoned decisions of a number of other jurisdictions. Finally, and most importantly, we conclude that Article 6 is inapplicable because the evils that the article is intended to prevent are not present in this case. In general, Article 6 is designed to protect unsecured trade creditors from the possibility that an unscrupulous merchant will sell most or all of his inventory in a single transaction and disappear with the proceeds without paying his creditors. At common law an aggrieved creditor had little or no recourse when faced with this kind of event. Once the debtor sold his inventory, the creditor could not reach the goods in the buyer's hands as long as the buyer was a bona fide purchaser. By hypothesis, the creditor had little hope of obtaining satisfaction from the personal assets of the debtor. To remedy this problem, most states enacted bulk sales laws which offered various kinds of protection to creditors. These statutes have gradually been replaced as states have adopted Article 6 of the Uniform Commercial Code, which is intended to give unsecured trade creditors some measure of protection against less-than-honest debtors. In many states Article 6 is simply a notice requirement. The article entitles creditors to receive advance notice of a bulk transfer, but does not confer upon creditors any specific remedy for collecting their debts. Alaska is among the minority of the states which have adopted a provision that imposes upon a bulk purchaser the obligation not only to notify creditors, but also to pay creditors' claims, to the extent of the purchase price, from the proceeds of the transaction. In our view, these protections are not applicable in this case because the sale of a restaurant does not present the evils that Article 6 is designed to prevent. As the commentary to Article 6 explains, restaurants were not intended to be covered by the article because restaurants' trade creditors generally do not extend unsecured credit on the faith of the restaurants' stock of merchandise, and thus creditors suffer no appreciable detriment when a restaurant sells all or most of its stock at once rather than in the ordinary course of business. Matanuska Maid argues that the A & W restaurant in this case falls within Article 6 because a restaurant's creditors do rely upon the restaurant's stock of inventory for repayment of their claims. Matanuska Maid points out that when a trade creditor sells food products on credit to a restaurant, it does so with the expectation that the restaurant will convert those products into meals to be sold to the public, and that the proceeds will then be used to pay the restaurant's debts. Thus, it concludes, creditors are relying on the restaurant's inventory when extending credit. We agree with this observation, but it is not pertinent to the issue of the applicability of Article 6. It is difficult to conceive of any situation in which a trade creditor does not rely on a business's ability to convert supplies, merchandise, or inventory into goods or services for which the public will pay, and to that extent trade creditors undoubtedly rely upon inventory for repayment of their claims. For purposes of Article 6, however, the pertinent question is not whether trade creditors extend credit with the expectation that a businessperson will successfully convert stock into saleable merchandise, but whether the creditor extends credit with the expectation that he will be able to reach the debtor's inventory or merchandise if the debtor fails to pay. Restaurants and similar service-oriented businesses are excluded from Article 6 because such enterprises' trade creditors tend to extend credit not on the faith of a stock of merchandise which can be seized to satisfy a claim, but upon their perception of the honesty and business acumen of the debtor. In short, we conclude that the evils that Article 6 is designed to prevent are not present in a transaction involving the sale of a restaurant, and therefore that the requirements of Article 6 do not apply in this case. III. Is Article 6 Applicable by Estoppel? Matanuska Maid's alternative argument is that even if article 6 is inapplicable to the sale of a restaurant, the article is applicable by estoppel because ABM's notice to creditors expressly stated that the sale was being conducted in accordance with "the Alaska Statutes governing Bulk Sales." Mata-nuska Maid contends that ABM may not now deny that Article 6 governs the transaction and that Matanuska Maid was entitled to payment from the escrow funds held by ABM. In Jamison v. Consolidated Utilities, Inc., 576 P.2d 97 (Alaska 1978), we explained that "[t]he general elements required for the application of the doctrine of equitable estoppel are the assertion of a position by conduct or word, reasonable reliance thereon by another party, and resulting prejudice." Id. at 102 (footnote omitted). In our view, the record is devoid of evidence that Matanuska Maid relied upon ABM's notice to creditors, or that Matanuska Maid will be prejudiced unjustly should the requirements of Article 6 not be applied in this case. Therefore, we reverse the superior court's ruling that Article 6 is applicable by estop-pel. Our conclusion rests in part on a review of the evidence adduced at trial. Matanuska Maid received ABM's notice to creditors on January 29, 1979. The notice instructed creditors to send their bills to ABM and informed creditors that the closing would take place sometime between February 5 and 28. Moses Lacson, Mata-nuska Maid's controller, testified that upon receiving ABM's notice he instructed an employee in charge of billings to send a statement to ABM as well as to the A & W. He further stated that he was certain that Matanuska Maid had sent a copy of the bill to ABM because the employee charged with that task was an efficient, reliable employee. The only proof offered that Matanus-ka Maid had sent a bill to ABM was a copy of a statement dated March 31, 1979, which was addressed not to ABM but to the A & W restaurant. The district court found that Matanuska Maid did not send any bill to ABM until late June, after Lacson called ABM to ask when payment would be forthcoming. This finding has not been challenged and in any event is supported by the record. The uncontradicted testimony of the ABM employee who handled the escrow of the restaurant, Beth Hafkey, was that ABM received no word from Matanuska Maid until late June, when Lacson called her to inquire when Matanuska Maid would be paid. When asked by the court why he waited five months to look into the status of Matanuska Maid's bill, Lacson replied that he had made no earlier inquiry because the amount involved was not large enough. In short, the record establishes not that Matanuska Maid relied on ABM's notice and therefore looked solely to ABM for payment of its bill, but rather that Mata-nuska Maid did nothing in response to ABM's notice because the amount involved was insignificant. Finally, there is no evidence that Matanuska Maid will be prejudiced if Article 6 is not applied by estoppel. Of course, Matanuska Maid will not be able to collect its bill from ABM, but absent Article 6 it had no right to demand payment from the proceeds of the sale to begin with. Thus, Matanuska Maid is in no worse a position than it would have been in had ABM not represented that the sale of the restaurant was being conducted in accordance with Article 6. Its recourse, as before, is against the persons to whom it extended credit. Thus, we conclude that the superior court erred in reversing the district court's judgment and in ruling that ABM was es-topped to deny the applicability of Article 6. REVERSED and REMANDED with instructions to affirm the district court's judgment. . AS 45.06.101-.111. . Matanuska Maid dismissed its claim against one of the sellers at the beginning of trial; its claim against the other seller was stayed because the seller had instituted bankruptcy proceedings. See 11 U.S.C. § 362(a)(1). Mata-nuska Maid has not pursued any claim against the restaurant's purchasers, the parties who would be primarily liable should Article 6 apply to the transaction involved in this case. . AS 45.06.102(a). . AS 45.06.102(c). . AS 45.06.106. . The businesses covered are defined in subsection (3) [AS 45.06.102(c)], Notice that they do not include farming nor contracting nor professional services, nor such things as cleaning shops, barber shops, pool halls, hotels, restaurants, and the like whose principal business is the sale not of merchandise but of services. While some bulk sales risk exists in the excluded businesses, they have in common the fact that unsecured credit is not commonly extended on the faith of a stock of merchandise. Uniform Commercial Code § 6-102 comment 2 (1979) [emphasis supplied). . See e.g., Uarco, Inc. v. Peoples Bank & Trust Co. of St. Bernard, 414 F.Supp. 1219, 1220 (E.D.La.1976) (dictum); De La Rosa v. Tropical Sandwiches, Inc., 298 So.2d 471, 473 (Fla.Ct.App.1974); Kentucky Club, Inc. v. Fifth Third Bank, 590 S.W.2d 686, 687 (Ky.1979); Buckley's Inc. v. Tell-Mall, Inc., 93 Mich.App. 570, 287 N.W.2d 3 (Mich.Ct.App.1979) (per curiam); Silco Automatic Vending Co. v. Howells, 102 N.J.Super. 243, 245 A.2d 765, 768-69 (N.J.Super.Ct.Ch.Div.1968), aff'd, per curiam, 105 N.J.Super. 511, 253 A.2d 480 (N.J.Super.Ct.App.Div.1969); Kane-Miller Corp. v. Tip Tree Corp., 60 Misc.2d 776, 303 N.Y.S.2d 273 (N.Y.Sup.Ct.1969); Nichols v. Acers Co., 415 S.W.2d 683, 689 (Tex.Civ.App.1967) (dictum). Lower courts in Pennsylvania have disagreed with this majority rule, see, e.g., Zinni v. One Township Line Corp., 36 Pa.D. & C.2d 297 (1965), but these decisions appear to rest upon pre-Article 6 precedent and fail to take into account the changes wrought by that article. See R. Anderson, 3 Anderson on the Uniform Commercial Code § 6-102:5 n. 11, at 447 (2d ed. 1971). . The basic philosophy of Article 6 is that creditors should have advance notice of an impending bulk transfer in order to give them a chance to protect their interests; thus, Article 6 requires a bulk buyer to give notice to creditors of the proposed transfer. A buyer who fails to give notice runs the risk that creditors will be able to disregard the transfer and to levy upon the goods which he has purchased as though those goods remained in the debtor's possession. On the other hand, a buyer who complies with Article 6 may rest secure in the knowledge that any dispute over nonpayment of debts is limited to the original parties, the creditors and the debtor; creditors have no recourse against the bulk buyer. . AS 45.06.106. . See note 6 supra. . We note also that Article 6 generally does not apply to the sale of a business's physical plant or fixtures, the most valuable assets owned by most service-oriented enterprises such as restaurants; rather, the article applies to sales of "materials, supplies, merchandise or other inventory." AS 45.06.102(a). A sale of equipment triggers Article 6 only if that sale accompanies a sale of inventory. See AS 45.-06.102(b); H.L.C. Imports Corp. v. M & L Siegel, Inc., 98 Misc.2d 179, 413 N.Y.S.2d 605, 606-07 (N.Y.Civ.Ct.1979). The parties have not addressed the question whether there has been a sale of "materials, supplies, merchandise or other inventory" in this case. The bill of sale for the restaurant covers only the restaurant's equipment and fixtures; although it may be reasonable to assume that the purchasers of the A & W acquired the restaurant's supplies and inventory as well, there is no proof to that effect in the record. Thus, there is some question whether the transaction in this case is of the kind governed by Article 6 even if restaurants are businesses which are subject to that article. . In view of our ruling, we need not address ABM's alternative argument that Article 6 is inapplicable because a restaurant is an enterprise which sells services and not an enterprise whose "principal business is the sale of merchandise from stock." AS 45.06.102(c). . Lacson had no personal knowledge of whether a bill had been sent to ABM, and the employee who was asked to send a bill to ABM did not testify at trial. .As counsel for ABM pointed out at trial, it is difficult to see how a statement dated March 31 and addressed to the restaurant is proof that Matanuska Maid sent a bill to ABM shortly after receiving ABM's notice to creditors on January 29. . The exchange at trial was as follows: THE COURT: [The January 29 notice to creditors] clearly states that all bills should be sent to ABM Escrow Closing . It says that closing will be sometime between February 5, 1979 and February 28, 1979. I was just wondering why somebody wouldn't, why you wouldn't, you or Miss Schaefer (ph) or somebody at your firm sort of call and contact these people at least shortly after February 28 when you would think it would be closed, or if not February, March or April or May, why wasn't something done, wouldn't r you be concerned about getting your check? MR. LACSON: Well, for one thing, the amount involved was not that big, it was only, at the time it was only $1,600 and, secondly, we felt that sending the monthly billing to the address . was enough, sufficient notice . . In light of our ruling, we need not answer the question whether Article 6, which addresses the question of a bulk purchaser's liability, is applicable as well to the purchaser's or the seller's agent.

10376785

Stephen A. KNIGHT, Appellant, v. STATE of Alaska, Appellee

Knight v. State

1993-07-23

No. A-4613

1347

1350

855 P.2d 1347

855

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Stephen A. KNIGHT, Appellant, v. STATE of Alaska, Appellee.

Stephen A. KNIGHT, Appellant, v. STATE of Alaska, Appellee. No. A-4613. Court of Appeals of Alaska. July 23, 1993. James H. Cannon, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Daniel R. Cooper, Jr., Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1823

11471

OPINION BRYNER, Chief Judge. Stephen Knight was caught in possession of thirty-one paper slips containing cocaine, which he was attempting to sell to raise money for past-due child support payments; the aggregate weight of the cocaine was about ten and one-half grams— slightly more than one-third of an ounce. Knight subsequently entered a plea of no contest to a charge of misconduct involving a controlled substance in the third degree in violation of AS 11.71.030(a)(1) (possession of cocaine with intent to deliver). Because he had previously been convicted of a felony, Knight was subject to a presumptive term of four years for the offense. AS 11.71.030(c); AS 12.55.125(d)(1). Prior to sentencing, Knight alleged that the mitigating factor specified in AS 12.55.-155(d)(14) applied to his case: that his "offense involved small quantities of a controlled substance." Superior Court Judge Mary E. Greene rejected the proposed mitigating factor, stating that, "[m]y cutoff point [for the 'small quantities' mitigating factor] has always been a quarter ounce.... " Although Judge Greene acknowledged that this limit was to some extent "admittedly arbitrary," the judge indicated that it was "based on the cases that I see" involving dealers who do not "deal any kind of large quantities." Upon rejecting Knight's proposed mitigating factor and after finding one applicable aggravating factor (which is not in dispute here), Judge Greene sentenced Knight to a term of four and one-half years with six months suspended. Knight appeals, challenging Judge Greene's rejection of his proposed mitigating factor. On appeal, Knight argues that defining the meaning of "small quantities" is an issue of law as to which we should exercise de novo review. Knight urges us to hold, as a matter of law, that ten and one-half grams of cocaine amounts to a small quantity for purposes of AS 12.55.-155(d)(14). He relies chiefly on cases that discuss the issue of "small quantities" and "large quantities" of drugs in the context of the guidelines established by the Alaska Supreme Court in Waters v. State, 483 P.2d 199 (Alaska 1971). In Waters, the supreme court grouped drug offenses into a four-tier hierarchy for sentencing purposes: sale or possession for sale of "large quantities"; sale or possession for sale of "small quantities"; simple possession; and marijuana offenses. Waters, 483 P.2d at 201. Later, in Elliott v. State, 590 P.2d 881 (Alaska 1979), the supreme court described an offender who sold two grams of cocaine and possessed ten more as one who dealt with "small quantities" for purposes of Waters, Elliott, 590 P.2d at 881-82. Knight cites Elliott to support his claim that the disputed mitigating factor, AS 12.-55.155(d)(14), should have applied in his own case. Knight similarly points to Major v. State, 798 P.2d 341, 344 (Alaska App.1990), as further supporting his position. There, we characterized a case involving a series of nine cocaine transactions, each consisting of between one-eighth and one-sixteenth of an ounce, as one that qualified under the "small quantities" rubric of Waters. In our view, however, cases discussing "small quantities" with reference to the Waters approach have little if any bearing on the interpretation of "small quantities" for purposes of the mitigating factor in this case. The Waters approach — adopted prior to the advent of presumptive sentencing and meant as an aid for non-presumptive sentencing purposes — establishes only two categories for cases involving sale or possession for sale of drugs other than marijuana: small quantity cases and large-quantity cases. Because Waters establishes no middle ground, it necessarily results in broad large-quantity and small-quantity categories, with little if anything falling in between; at most this approach leaves room in the middle for a narrow, "borderline" category of doubtful cases. See, e.g., Lausterer v. State, 693 P.2d 887, 891 (Alaska App.1985) (one to eight ounces of cocaine comprise the middle ground). In sharp contrast to the Waters approach, Alaska's presumptive sentencing scheme takes a decidedly more center-oriented view of sentencing. The presumptive term for any given class of case represents the appropriate sentence for typical cases in that class, a relatively broad category into which most cases will fall; statutory aggravating and mitigating factors define the peripheries of this category, identifying relatively narrow circumstances that tend to make a given case atypical and place it outside the relatively broad presumptive middle ground. See Juneby v. State, 641 P.2d 823, 833 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983). Given the difference in emphasis between the Waters approach and the approach followed by the presumptive sentencing statutes, it is apparent that the meaning of the terms "small quantities" and "large quantities" will depend on the context in which those terms are used. On the one hand, for Waters purposes, a "small quantity" is anything less than a "large quantity"; conversely, a "large quantity" is anything that is not "small." On the other hand, for presumptive sentencing purposes — and, more specifically, for purposes of applying AS 12.55.-155(d)(14) and its corresponding "large quantities" aggravating factor, AS 12.55.-155(c)(25) — a "small quantity" is a quantity that is uncharacteristically small in comparison to the broad-middle ground covered by a typical drug case; conversely, a "large quantity" is one at the other extreme of the norm for the offense. In the present case, the pertinent question is whether one-third ounce of cocaine amounts to an unusually or uncharacteristically small quantity in comparison to a typical case in which cocaine is possessed by one who intends to sell it. Cases discussing "small quantities" in the Waters context are of little utility in resolving this question. Moreover, contrary to Knight's assertion on appeal, this question, we think, is primarily one of fact, not one of law. Within any class of controlled substance, what constitutes an unusually small or large quantity may vary from case to case, depending on variables such as the precise nature of the substance and the form in which it is possessed, the relative purity of the substance, its commercial value at the time of the offense, and the relative availability or scarcity of the substance in the community where the crime is committed. Variations may also occur over time: what amounted to a typical controlled substance transaction ten years age might be an exceptional one today. These variables do not lend themselves to an inflexible rule of general application, and they render it both undesirable and wholly impractical to treat the question of what constitutes a "large" or "small" quantity for purposes of AS 12.55.155(c)(25) and (d)(14) as an abstract question of law. The question must instead be resolved by the sentencing court as a factual matter, based on the totality of the evidence in the case and on the court's discretion, as informed by the totality of its experience. We recognize that sentencing judges will inevitably differ from time to time in deciding whether a particular quantity of a controlled substance is large or small for purposes of AS 12.55.155(c)(25) or (d)(14). To the extent such differences are not explained by the peculiar facts of the cases under consideration, conflicts can be resolved at the appellate level on a case-by-case basis. At this juncture, we see no need to adopt hard-and-fast definitions as a preemptive measure against potential conflicts. In the present case, the sentencing court properly considered the totality of the circumstances in Knight's case in determining that his offense did not involve small quantities of cocaine for purposes of AS 12.55.-155(d)(14). Those circumstances included not only the total weight of the cocaine— more than one-third ounce — but also the clearly commercial context of Knight's possession: the cocaine was wrapped in thirty-one separate packets, and Knight admitted his intent to sell it for substantial monetary gain. The court also properly evaluated these circumstances in light of its own experience handling similar cases, which indicated that quantities of one-quarter ounce or more could not be considered unusually small. There is nothing in the sentencing record to indicate that the sentencing court was inaccurate in its assessment of what could realistically be deemed the lower limit for a typical case involving possession of cocaine with intent to distribute. Nor do this court's prior decisions indicate that the sentencing court erred in its judgment; all of our prior cases finding the disputed mitigating factor applicable have involved less than four grams of cocaine. We conclude that the sentencing court was not clearly erroneous in rejecting the proposed mitigating factor. Lepley v. State, 807 P.2d 1095, 1099 (Alaska App. 1991) (holding the clearly erroneous standard of review applicable to decisions concerning the existence of aggravating and mitigating factors). The sentence is AFFIRMED. . As we said in Juneby, 641 P.2d at 833: Under the view espoused by the legislature, a presumptive term represents the appropriate sentence for cases that fall within the middle-ground between the opposing extremes of the most and least serious conduct for a given crime. It is to be expected, then, that sentences equalling or varying only slightly from the presumptive terms will generally be suitable when presumptive sentencing applies. Minor adjustments for aggravating or mitigating circumstances might be appropriate in a significant number of cases; only in unusual cases, however, can it be anticipated that substantial deviation from the presumptive term will be called for. . In this regard, we note that the legislature has placed the burden of proving an aggravating or mitigating factor on the factor's proponent, who must prove it by clear and convincing evidence. AS 12.55.155(f). To the extent that a sentencing judge's experience with cases involving controlled substances does provide a ready answer to the question of whether a given quantity of a substance is unusually small or large under the particular circumstances of the case at hand, the proponent of the factor is responsible for adducing proof, not only as to what quantity is involved in the specific case, but also as to what quantity is typical — that is, what constitutes the norm for the offense at a particular time and place. If the sentencing court remains unconvinced on the issue after weighing the totality of the evidence, its doubt signifies a failure of proof. . See McPherson v. State, 800 P.2d 928, 931 (Alaska App.1990), rev'd on other grounds, State v. McPherson, 855 P.2d 420, 1993 WL 237583 (Alaska, 1993) (two grams); Jones v. State, 771 P.2d 462, 463 (Alaska App.1989) (2.97 grams of crack and .80 grams of cocaine); Smith v. State, 745 P.2d 1375, 1376-77 (Alaska App.1987) (approximately one-fifth gram).

10358359

Joe A. PEEK (Deceased) and Mary Peek, Appellants, v. SKW/CLINTON and Alaska Pacific Assurance Company, Appellees

Peek v. SKW/Clinton

1993-06-25

No. S-4935

415

420

855 P.2d 415

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,

Joe A. PEEK (Deceased) and Mary Peek, Appellants, v. SKW/CLINTON and Alaska Pacific Assurance Company, Appellees.

Joe A. PEEK (Deceased) and Mary Peek, Appellants, v. SKW/CLINTON and Alaska Pacific Assurance Company, Appellees. No. S-4935. Supreme Court of Alaska. June 25, 1993. Chancy Croft, Chancy Croft Law Office, Anchorage, for appellants. James E. Hutchins, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appel-lees. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ,

3066

18929

OPINION MATTHEWS, Justice. In this case, Mary Peek, the widow of Joe Peek, appeals the superior court's affirmation of the Alaska Workers' Compensation Board's ("Board") denial of death benefits to her from SKW/Clinton, one of Joe Peek's employers. We AFFIRM the Board's order denying and dismissing Peek's claim against SKW/Clinton. I. FACTUAL AND PROCEDURAL BACKGROUND Joe Peek worked as a pipefitter and plumber for almost 45 years in California, New Mexico, Arizona, Nevada, Idaho, and Alaska. Throughout his career he was exposed to asbestos in the work place. His last three employers were all located in Alaska: Fluor Alaska, from 1975 to 1977; SKW/Clinton, from August 1977 to January 1978; and Litwin Corporation, from July 1980 through December 1980. In April 1986, Peek was hospitalized with shortness of breath and chest pain. He was diagnosed as having a tumor consistent with mesothelioma. Peek had sur gery in June 1986, was again hospitalized in April 1987, and died on May 4, 1987. The cause of death was listed as respiratory failure due to abdominal ascites resulting from mesothelioma metastasis. Joe Peek's widow, Mary Peek, claimed Joe's mesothelioma was caused by his exposure to asbestos in the work place and filed a claim for death benefits under the Alaska Workers' Compensation Act against eighteen Alaskan employers for whom Peek had worked. On January 13, 1989, the Board approved a compromise and release agreement between Mary Peek and ten of the former employers and their insurers involving payment of approximately $200,000. One of the settling parties was Litwin Corporation, Peek's last employer in 1980. The Board dismissed four other defendants, but denied SKW/Clinton and Fluor's motions for dismissal. After a hearing adjudicating Mary Peek's claims against Fluor and SKW/Clinton, the Board issued a decision denying and dismissing Peek's claims against both employers. The Board found that Peek's employment at Litwin in 1980 was the last employment that constituted a substantial factor in bringing about his death. Therefore, in accordance with the "last injurious exposure" rule, the Board relieved SKW/Clinton and Fluor of any liability for payment of death benefits to Mary Peek. On appeal, the superior court affirmed the Board's decision. Peek appeals. II. DISCUSSION Peek makes two arguments on appeal: (1) that the Board incorrectly applied the "last injurious exposure" rule when it relieved SKW/Clinton, the second-to-last employer, of any liability for death benefit payments; and (2) that the Board erred in finding that Peek's employment at Litwin Corporation, his last employer, constituted a substantial factor in causing Peek's death. We address these contentions in turn. A. Did the Board Properly Apply the "Last Injurious Exposure" Rule? This court adopted the "last injurious exposure" rule in Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 596-97 (Alaska 1979). Under this rule, full liability is placed on the most recent employer whose employment of the claimant bears a causal relation to the claimant's disability. 4 Arthur Larson, The Law of Workmen's Compensation § 95.20 (1990). In United Asphalt Paving v. Smith, 660 P.2d 445 (Alaska 1983), we set out two determinations that must be made under this rule: "(1) whether employment with the subsequent employer 'aggravated, accelerated, or combined with' a pre-existing condition; and, if so, (2) whether the aggravation, acceleration or combination was a 'legal cause' of the disability, i.e., 'a substantial factor in bringing about the harm.' " Id. at 447 (quoting Saling, 604 P.2d at 597, 598). Peek argues that no decision in this state has ever allowed the rule to be used, as it was by SKW/Clinton, as a defense to a claim for compensation. Peek contends that the rule is meant only to be a "sword for an injured worker, not a shield for an employer." SKW/Clinton cites State, Department of Highways v. Burgess Construction Co., 575 P.2d 792 (Alaska 1978), for the proposition that the "last injurious exposure" rule can be used as a defense. In that case, the employee, Benson, filed workers' compensation claims against Burgess Construction, where he had worked several years, and the State, his last employer. Id. at 793-94. Burgess argued that it was not liable as it was not the last place of employ ment where Benson was exposed to the poison causing his disease. The Board nevertheless held Burgess liable for Benson's disability and Burgess appealed to the superior court. Id. at 794. The State moved to dismiss the appeal as it pertained to the State on the grounds that the appeal was taken too late. Id. The State's motion was granted, and no appeal was taken from the order dismissing the State. Id. Subsequently the superior court found that the Board erred in not imposing liability on the State as the last employer and remanded the case to the Board to determine the liability of the State as the last employer. The State appealed. Id. This court agreed with the State that the superior court had erred in remanding the case to the Board to determine whether the State was liable after the State had been dismissed from the case; further, we agreed that the dismissal was technically proper. Nonetheless, we reversed the superior court's order dismissing the State. We took this step in order to avoid "a serious injustice" to the employee due to the procedural error of the first employer. Id. at 796. We noted that if we affirmed the dismissal of the State, the result on remand to the Board might be that "the State rather than Burgess may be liable to Benson under the last injurious exposure rule. The Board will not have jurisdiction over the State . [because the State had been dismissed from the case] and thus Benson may find that while he has a com-pensable disability, he will be legally entitled to benefits from no one." Id. SKW/Clinton interprets Burgess as recognizing that the last injurious exposure rule can be used as a defense. Peek argues that Burgess was decided before we adopted the "last injurious exposure" rule in Saling and therefore cannot be considered an interpretation of Saling. While Burgess obviously cannot be considered an interpretation of Saling, it is an interpretation of the "last injurious exposure" rule. By recognizing that on remand the State might be found to be the "last employer on whose job Benson was injuriously exposed," we implicitly acknowledged that Burgess could raise the rule as a defense, thereby avoiding liability. Our concern was that the last employer to expose the employee was no longer before the Board, and that use of the rule as a defense by another employer would defeat the employee's claim completely. For this reason, we relaxed our procedural rules and reversed the superior court's dismissal of the last employer. Burgess thus suggests that an employee may use the last injurious exposure rule as a defense. Two other cases cast further light on the appropriate defensive use of the last injurious exposure rule. First, the Ninth Circuit allowed use of the last injurious exposure rule as a defense under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901-50, in Kelaita v. Office of Workers' Compensation Programs, 799 F.2d 1308 (9th Cir.1986). In Kelaita, the employee filed claims against his last two employers: Triple A Machine Shop and General Engineering. An administrative law judge denied both claims, but Kelaita appealed only his claim against Triple A. Id. at 1309. On remand from an order vacating the judge's ruling, the judge found that General was liable under the last responsible employer rule and denied Kelaita's benefits as General was no longer a party. Id. at 1310. Kelaita appealed, arguing that "where there is no jurisdiction over a potentially liable subsequent employer, the [last injurious exposure] rule should not defeat a worker's claim." Id. at 1311. The Ninth Circuit rejected this argument and allowed defensive use of the last injurious rule because: [t]he lack of jurisdiction over General is the fault of neither General nor Triple A. General attempted to participate in the appeal, but Kelaita made it clear he was appealing only as to the decision regarding Triple A. Kelaita cannot now attempt to hold Triple A liable and deprive it of the last responsible employer defense when Kelaita himself decided to pursue his claim only against Triple A. Id. at 1311. Second, in Carrier v. Shelby Mutual Insurance Company, 370 Mass. 674, 351 N.E.2d 505 (1976), aff'g Carrier's Case, 3 Mass.App. 502, 334 N.E.2d 633 (1975), the Supreme Judicial Court of Massachusetts addressed a fact pattern quite similar to the present case. The employee suffered successive injuries while working for two employers. Both injuries contributed to his present disability — the more recent only to the extent of ten percent of the total disability. The employee settled with the more recent employer. His claim against the earlier employer was held to be barred under the Massachusetts last injurious exposure rule. Id. 351 N.E.2d at 507. Kelaita and Carrier both indicate that when the last employer was at one time properly before the adjudicating authority, but is later removed from the case by a voluntary act of the worker, the worker cannot avoid application of the last injurious exposure rule. We agree that this approach is reasonable. In this case, Peek made the decision to settle with Litwin, Joe Peek's last employer. With the Board's approval, the settlement became "enforceable the same as an order or award of the board" and "discharge[d] the liability" of Litwin as to Peek. AS 23.30.012. Thus Peek's voluntary act removed from the case the employer potentially liable under the "last injurious exposure" rule. The possibility that the Board would find Litwin to be the employer liable under the rule was a risk Peek took in settling with Lit-win. We hold that an employer can use the "last injurious exposure" rule as a defense to liability where the employee has settled with the last employer who is potentially liable and was properly before the Board. B. Is There Substantial Evidence to Support the Board's Finding That Joe Peek's Employment at Litwin Corporation Constituted a Substantial Factor in Causing Peek's Illness? "[T]he question of whether employment aggravated or accelerated a pre-exist-ing disease or injury is one of fact to be determined by the Board and it is not the function of the court to reweigh the evidence or choose between competing inferences." Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 317 (Alaska 1981). The Board's finding that Joe Peek's employment at Litwin in 1980 was a substantial factor in bringing about Peek's meso-thelioma and subsequent death is such a finding of fact. We will affirm the Board's factual findings where substantial evidence exists " 'in light of the whole record that a reasonable mind might accept as adequate to support the board's conclusion.' " Summerville v. Denali Center, 811 P.2d 1047, 1051 (Alaska 1991) (quoting Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985)). Peek argues that even if the "last injurious exposure" rule can be used as a defense, there was insufficient evidence for the Board to find that Peek's employment at Litwin met the factual and legal causation requirements this court set out in United Asphalt Paving, 660 P.2d at 447 (see supra p. 416). Therefore, Peek argues that as his employment at SKW/Clinton does meet these requirements, SKW/Clinton is liable under the "last injurious expo sure" rule. The question is not, however, whether the exposure at SKW/Clinton was a substantial factor. The question is whether the exposure at Litwin, a subsequent employer, was also a substantial factor in causing Peek's death. As we pointed out in Saling, under the "last injurious exposure" rule, an employee need not show that employment with the last employer was the legal cause of disability, only a legal cause of the disability. Saling, 604 P.2d at 598. There is no dispute that Joe Peek was exposed extensively to asbestos on several jobs. At the hearing, testimony was presented by several of Peek's co-workers that asbestos was "like snow" in the air on several jobs including SKW/Clinton. Although Peek argues that there was no testimony indicating that Peek was exposed to asbestos at Litwin, the Board was presented with the deposition of Floyd Luster, who stated that exposure at Litwin also was like "snow in the air,",and that Peek would have been exposed to the asbestos in the course of his job. Because Peek presented no significant evidence to the contrary, we cannot say that the Board erred in finding that Peek was in fact exposed to high levels of asbestos at both SKW/Clinton and Litwin. The more difficult question is whether exposure at Litwin was a legal cause, a "substantial factor in bringing about the harm." Id. Three medical experts testified in this case: Dr. Alan Gazzaniga, the surgeon who originally diagnosed Peek and operated on him; Dr. Irwin Stoloff, an oncologist; and Dr. Ken Miller,, a specialist in occupational medicine. All three agreed that if the exposure at SKW/Clinton was as described by Peek's co-workers, then that employment was a substantial factor in the development of Peek's mesothelioma. The doctors were not as emphatic in their conclusion that Peek's employment at Lit-win was also a substantial factor in causing his death. Nevertheless, two of them did give testimony which can be so construed. Dr. Stoloff testified that, given Peek's exposure to asbestos over thirty-forty years, the exposure at both SKW/Clinton and Lit-win was a substantial additive factor to the fiber burden that increased the risk of mesothelioma, particularly if the exposure was as heavy as Peek's co-workers testified. Dr. Miller was more equivocal in his testimony, but did not rule out the possibility that the Litwin exposure was a substantial factor. Dr. Miller testified that meso-thelioma is dependent on two factors, the latency period, defined as the time elapsed between the initial exposure to asbestos and the development of the tumor, and the total dose of. exposure. The further away in time from the initial exposure, the less likely the exposure is a substantial factor in the development of the disease. However, Dr. Miller testified that any dose, additional cumulative dose, as I said earlier, increases the chances that the response you are looking for — in this case, mesothelioma — would be more likely to occur, and if that is your — if that is your background understanding, then any exposure within a reasonable latency period could be a substantial contributing factor. Although the doctors' testimony was not absolute, the Board found the testimony sufficient to conclude that Peek's exposure at Litwin was a substantial factor in aggravating or accelerating Peek's death. Under the deferential standard of review employed by this court, the evidence is suffi cient " 'in light of the whole record that a reasonable mind might accept as adequate to support the board's conclusion.' " Summerville, 811 P.2d at 1051 (quoting Delaney, 693 P.2d at 863). III. CONCLUSION The Board did not err in allowing SKW/Clinton to use the "last injurious exposure" rule as a defense. Peek has not been left without compensation. By settling with Litwin, Mary Peek accepted the risk that the Board might find Litwin to be the last employer to substantially contribute to Joe Peek's death. Furthermore, under the standard of review for factual findings, substantial evidence exists in the record to support the Board's finding that Peek's employment with Litwin was a substantial factor in aggravating or accelerating Peek's death. Therefore we AFFIRM the decision of the superior court affirming the Board's order denying and dismissing Mary Peek's claim against SKW/Clinton. . Mesothelioma is a tumor arising from the mesothelial cells lining the pleural cavity. It is generally associated with exposure to asbestos. . Peek does not appeal the dismissal against Fluor, because between SKW/Clinton and Fluor, SKW/Clinton is the last employer. . Whether the Board properly applied the "last injurious exposure" rule is a question of law, and as such is subject to independent review by this court. Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska 1989) (citing Simon v. Alaska Wood Prods., 633 P.2d 252, 254 (Alaska 1981); M-K Rivers v. Schleifman, 599 P.2d 132, 134 (Alaska 1979)). . The Ninth Circuit Court of Appeals faced a similar situation in Todd Shipyards Corp. v. Black, 717 F.2d 1280 (9th Cir.1983), a case brought under the Longshore and Harbor Workers' Compensation Act. In Todd, the Ninth Circuit acknowledged that the "last injurious exposure" rule could be used as a defense. Id. at 1284. However, the court did not allow Todd, the second-to-last employer, to utilize it as such because the last employer was outside the coverage of the Act. Id. at 1286. The Ninth Circuit recognized the possibility of an employer using the rule as a defense, but limited the rule to "the last employer covered by the applicable statute." Id. at 1285. . We recently held that when the last employer is not within the jurisdiction of the Board, as in the case of an out-of-state employer, the last employer in Alaska may not use the last injurious exposure rule as a defense. Wolfer v. Veco, lnc., 852 P.2d 1171 (Alaska 1993). If the employee has settled with the out-of-state employer, double recovery may be avoided by giving credit for the benefits received from the out-of-state claim. Id. . Dr. Gazzaniga testified that it was out of his area of expertise to determine if the exposure at Litwin was a substantial factor. . Stoloff testified that "any employment that released significant respirable fibers of asbestos would have contributed to his mesothelioma." . Peek argues that the exposure at Litwin could not be a substantial factor in Peek's death as the average latency period for mesothelioma is thirty-forty years, and the shortest latency period testified to was seven years. The latency period, however, is not the issue in this case. SKW/Clinton is not arguing that the exposure at Litwin was the initial first exposure or cause of Peek's disease. Rather, SKW/Clinton is arguing that as each exposure to asbestos is cumulative and increases the risk of developing meso-thelioma, the exposure at Litwin "aggravated, accelerated, or combined with" pre-existing exposure to cause Peek's death.

10433717

Joel Anthony ELSON, Appellant, v. STATE of Alaska, Appellee

Elson v. State

1983-02-18

No. 4967

1195

1206

659 P.2d 1195

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.

Joel Anthony ELSON, Appellant, v. STATE of Alaska, Appellee.

Joel Anthony ELSON, Appellant, v. STATE of Alaska, Appellee. No. 4967. Supreme Court of Alaska. Feb. 18, 1983. Christine Schleuss, Asst. Public Defender, Anchorage, Erick M. Safire, Asst. Public Defender, Kenai, Brian Shortell, Public Defender, Anchorage, for appellant. Rhonda F. Butterfield, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

7481

45607

OPINION RABINOWITZ, Justice. Joel Elson was convicted and sentenced to twenty-one months for possession of cocaine -in violation of former AS 17.10.010. Elson's conviction and sentence were upheld by the Court of Appeals. We granted El-son's petition for hearing in order to review two facets of that decision. First, the Court of Appeals' holding that evidence concerning Elson's resistance to a "pat down" search was properly admitted. Second, the holding that illegally seized evidence could be considered by the superior court in determining Elson's sentence. I. Facts On February 23, 1979, Elson was stopped by Trooper Robert Scott after Scott had clocked Elson driving 68 miles per hour in a 45 mile per hour zone. Upon stopping El-son, Scott detected the odor of alcohol and observed that Elson's eyes were bloodshot and watery. Scott had Elson perform several field sobriety tests after which Scott placed Elson under arrest for operating a vehicle while under the influence of alcohol. In conducting a "pat down" search of Elson for weapons, Scott felt a hard object about two inches wide and four inches long in Elson's right pants pocket. Suspecting that it was a knife, Scott attempted to remove it but was stopped by Elson who grabbed Scott's hand. Scott then had Elson place his hands on the trunk of the car. Trooper Scott thereafter reached into Elson's pocket, withdrawing a "Bic" lighter and a brown vial which was connected to an item identified by Scott as a cocaine snifter. The police tested the residue on the inside of the vial and determined that it was cocaine. Elson was subsequently indicted for possession of cocaine. At trial on the possession charge, Elson sought a protective order to prevent the admission of any testimony regarding his attempt to stop Trooper Scott from searching his pocket. The motion was denied and Scott was permitted to testify that Elson tried to prevent him from reaching into Elson's pocket. In final argument the prosecution commented on Elson's refusal to submit to a search, citing it as evidence that Elson knew that he had cocaine on his person. The Court of Appeals held that the admission of Trooper Scott's testimony concerning Elson's resistance to the search did not violate his right of privacy under the federal and state constitutions and that the superior court's admission of this evidence was not an abuse of discretion under Evidence Rule 403. Approximately two months prior to trial on the possession charge, Elson was arrested for assault and battery and operating a motor vehicle while under the influence of alcohol. He was taken to the police station and placed in a restricted visitor's room. While in this room Elson ripped out several telephones. Officers removed him from the room and searched him, discovering a clear zip-lock plastic bag containing a white powder. After obtaining a search warrant, the police seized the powder and sent it to the crime lab for testing, which indicated that the substance was cocaine. At the sentencing hearing following El-son's conviction on the original cocaine possession charge, the state introduced evidence of the police station discovery of cocaine. Elson moved for an evidentiary hearing to determine whether the bag of cocaine had been illegally seized. The superior court denied Elson's motion, admitted the evidence of Elson's subsequent cocaine possession, and specifically stated that it had considered this evidence in determining Elson's sentence. In denying Elson's motion, the superior court made no specific ruling on the legality of the search and seizure which occurred at the police station; the Court of Appeals assumed, in the absence of a superior court finding, that the evidence was illegally seized. The Court of Appeals held that the superior court's consideration of illegally seized evidence for purposes of sentencing was not improper. II. Admissibility of Elson's Refusal to Consent to the Search On two prior occasions, we have held that evidence of a defendant's refusal to consent to a search is not admissible at trial in circumstances where the search would be illegal if conducted without the defendant's permission. Padgett v. State, 590 P.2d 432, 434 (Alaska 1979); Bargas v. State, 489 P.2d 130, 133 (Alaska 1971). Bargas involved a suspected drug deafer who was stopped by a police officer and asked to submit to a voluntary search. The defendant refused and then ran away from the officer. In holding that the admission of testimony regarding the defendant's refusal to consent to search and subsequent flight was a violation of the defendant's fourth, amendment' rights, we stated: What this ease is all about is that appellant's assertion of his constitutional right not to have his privacy invaded without just cause was used against him to help establish guilt of the crime for which he was indicted. This is entirely impermissible. It would make meaningless the constitutional protection against unreasonable searches and seizures if the exercise of that right were allowed to become a badge of guilt. Bargas, 489 P.2d at 132. An analogy was drawn to United States Supreme Court cases which hold that a defendant's assertion of his fifth amendment right to remain silent may not be used against him at trial. A like principle applies here. One's assertion of his constitutional right not to submit to a search of his person cannot be used as evidence of guilt if this constitutional right is to have any meaning. Id., at 133. In Padgett, the police impounded the defendant's auto and asked if he would consent to a search of the car without a warrant. Initially the defendant limited his consent to a search of the back of the car, but later he agreed to a search of the entire car. In ruling that the admission and use of testimony regarding the defendant's initial refusal to consent to a full search of the car constituted "plain error," we reasoned: Padgett had a right under the fourth amendment to the Federal Constitution, and article I, section 14 of the state constitution, to refuse to consent to a search of all or part of his car. That right would be effectively destroyed if, when exercised, it could be used as evidence of guilt. Padgett, 590 P.2d at 434. Bargas and Pad-gett are based on the premise that permitting the jury to draw an inference of guilt from a refusal to consent to a search would impose a prohibitive cost upon an individual's assertion of his constitutional rights. Elson argues that the rule of Bargas and Padgett should be extended to bar the introduction of testimony regarding his refusal to submit to the search even though the search would have been lawful without his consent. The state's argument, which the Court of Appeals accepted, is that the exclusionary rule enunciated in those cases is inapplicable where, as in this case, the contested search was lawful. In essence, the Court of Appeals held that when a person objects to what is later determined to be a constitutionally permissible search, that objection may be admissible at trial as evidence of the person's guilt. While we agree that Bargas and Padgett are not controlling here, we disagree with the rationale advanced by the Court of Appeals. . Bargas and Padgett focused on the individual's constitutional right not to consent to a search of his person or property. We were primarily concerned with the likelihood that the admission of a refusal to consent to a search would serve to deter people from asserting their constitutional rights. We recognized that the constitutional right to refuse to consent to an unlawful search "would be effectively destroyed if, when exercised, it could be used as evidence of guilt." Padgett, 590 P.2d at 434. Since the searches in those cases would have been illegal absent consent, we were not required to rule on the admissibility of a refusal to consent to a lawful search. However, in the case at bar, since the non-consensual search of Elson's pocket was legal, we must address this issue. We conclude that the rationale of Bargas and Pad-gett applies with equal force to lawful searches. In our view, the crucial question is not whether a search is illegal, but rather whether the admission of a refusal to consent to a search, legal or illegal, will inhibit the exercise of fourth amendment rights. The contrary position advocated by the state, in which the admissibility of the refusal would turn on the legality of the search, places an individual facing a police request to search in a difficult dilemma. As Elson points out, the legality of a search is often determined long after the fact, and thus a person who is asked to consent to a search would not know whether he is protecting or prejudicing himself by choosing not to consent. If the person consents, the fruits of the search would be admissible regardless of whether the police had the right to search without consent. If the person believes the search is impermissible and withholds his consent, he risks having his refusal considered as an admission of guilt if it is later ascertained that the non-consensual search was permissible. An individual in this situation would have to balance a desire to assert his perceived fourth amendment rights against the risk of self-incrimination. This tension is magnified by the fact that in deciding whether to consent to a search, the individual is usually acting without the benefit of counsel's advice as to the legality of the police conduct and the possible success of fourth amendment objections. In our view, the analysis adopted by the Court of Appeals would penalize individuals for their ignorance of the arcane intricacies of search and seizure law by allowing mistaken assertions of perceived fourth amendment rights to be used as evidence of guilt. We recognize that some courts have held that a defendant's refusal to provide "non-testimonial" evidence (fingerprints, writing sample, breath sample) is admissible at trial. The general rationale adopted by these cases is that the defendant has no fifth amendment right to refuse to cooperate or to submit to the tests, thus the admission of the defendant's refusal does not infringe on the privilege against compelled self-incrimination. The defendant's refusal to consent is seen not as a testimonial communication but rather as conduct which is circumstantial evidence of his consciousness of guilt. People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393, 397—98 (Cal.1966). Whatever the merits of this line of reasoning, we think it is inapplicable to cases where the defendant refuses to consent to a search which he mistakenly believes to be illegal. It is settled that a defendant has no federal constitutional right to refuse to provide evidence of his physical traits. The admission of the defendant's refusal in one case will not inhibit his future assertion of his fifth amendment rights since by definition the defendant will never have the right to refuse to provide this evidence. In contrast, the admission of an individual's refusal to consent to a legal search in one case may inhibit individuals from exercising the right to refuse consent to some future illegal search. We therefore hold that evidence of a refusal to consent to a search is inadmissible regardless of the legality of the search. III. Admissibility of Elson's Resistance to the Search In this case, however, we are not dealing with a mere refusal to grant consent to a search. The challenged testimony related to Elson's attempt to prevent the officer from searching his pocket. We must therefore consider the question whether there is a constitutional right to physically resist a search. This question of first impression is in many ways analogous to the question whether there is a right to forcibly resist an arrest. In Miller v. State, 462 P.2d 421, 427 (Alaska 1969), we held that a private citizen may not use force to resist a peaceful arrest regardless of whether the arrest is illegal. Rejecting the common law rule which permitted the use of reasonable force to resist an unlawful arrest, we stated: We feel that the legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court. Such a rule helps to relieve the threat of physical harm to officers who in good faith but mistakenly perform an arrest, as well as to minimize harm to innocent bystanders. We reasoned that if a right to resist a peaceful arrest forcibly was recognized, it would inevitably increase the danger of escalating violence between the officer and the arrestee. Miller, 462 P.2d at 426. In addition, we noted that the common law rule of self-help was developed in a time when the procedural safeguards which exist today were unknown. Id. Several courts have applied a similar analysis to cases involving physical resistance to a search. In United States v. Ferrone, 438 F.2d 381, 390 (3rd Cir.1971), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971), the court held that an individual has no right to resist the execution of a search warrant even where the warrant is subsequently found to be invalid. Society has an interest in securing for its members the right to be free from unreasonable searches and seizures. Society also has an interest, however, in the orderly settlement of disputes between citizens and their government; it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes. We think a proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted by a peace officer pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the execution of the warrant at the place of search. United States v. Ferrone, 438 F.2d at 390. Similarly, the New Mexico Supreme Court has stated; Self-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury. The societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search.... One can reasonably be asked to submit peaceably and to take recourse in his legal remedies. We hold that a private citizen may not use force to resist a search by an authorized police officer engaged in the performance of his duties whether or not the arrest is illegal. We agree with these courts and conclude that the rule we adopted in Miller is applicable to cases involving physical resistance to a search by the police. Thus, we hold that a private citizen may not use force to resist a peaceful search by one he knows or has good reason to believe is an authorized police officer performing his duties, regardless of whether the search is ultimately determined to be illegal. Applying this standard to this ease, we conclude that Elson had no right to resist physically the pat down search by the officer. The evidence shows that Elson was under arrest by a uniformed police officer and there is no indication that the officer used unreasonable force in conducting the pat down search. Therefore, the admission of testimony concerning Elson's resistance did not violate his constitutional rights. Elson next argues the evidence of his resistance should have been excluded because its probative value was outweighed by the danger of unfair prejudice. He asserts that his refusal to submit should not have been presented to the jury as evidence of guilt because he was merely attempting to exercise what he believed to be his constitutional right to resist an unauthorized government intrusion. Since there was an alternative explanation for his resistance, Elson contends that it was an abuse of discretion to admit the resistance as evidence of guilt. The state argues that El-son's attempt to prevent the search was conduct indicating his knowledge of the cocaine and that it presented no danger of unfair prejudice since it was not the type of evidence which would inflame the jury or lead to a decision on some improper basis. The Court of Appeals found that Elson's resistance to the search was relevant as an admission by conduct of his awareness of the cocaine. While recognizing that there were other possible explanations for Elson's behavior, the Court of Appeals concluded that the admission of the evidence was within the discretion of the trial judge. In Watson v. State, 387 P.2d 289, 291 (Alaska 1963), we held that testimony regarding a defendant's silence in the face of an accusatory statement is inadmissible in situations where the defendant's silence is equally consistent with a state of mind other than acquiescence in the truth of what was said. This limitation was based, however, on the inherent weakness of the correlation between guilt and mere silence. Blue v. State, 558 P.2d 636, 645 n. 21 (Alaska 1977). We reject Elson's argument that this limitation should be extended to this case. Elson's attempt to prevent a search of his pocket was an affirmative act which could reasonably be interpreted as an indication that he had something to hide. While hardly dispositive, Elson's resistance does have some tendency to show that he was aware of the cocaine in his pocket. We agree with the Court of Appeals that any alternative explanations for Elson's conduct go to the weight rather than the admissibility of the evidence. We therefore affirm the Court of Appeal's ruling that the admission of testimony about Elson's resistance to the search was not an abuse of discretion. IV. Admissibility of Illegally Seized Evidence at the Sentencing Hearing. The Court of Appeals held that under the United States and Alaska constitutions the sentencing court could properly consider illegally seized evidence in determining Elson's sentence. We conclude that where the illegally seized evidence is reliable, where the police conduct involved in obtaining the evidence does not shock the conscience of the court, and where it is clear that the evidence was not obtained for purposes of influencing the sentencing judge, illegally seized evidence may be considered in fashioning a sentence. Elson v. State, 633 P.2d at 300. While the admissibility of illegal evidence at sentencing is a question of first impression in Alaska, this court has previously held that such evidence could be used in a probation revocation proceeding. State v. Sears, 553 P.2d 907 (Alaska 1976). In refusing to apply the exclusionary rule to probation hearings, we stated: This court must answer the question whether extension of the exclusionary rule to probation revocation hearings would further the goal of deterrence (of unlawful methods of law enforcement) .sufficiently to outweigh the need for use of the evidence thus secured to promote the enforcement of a rational probation system. Theoretically, any time illegally seized evidence is excluded, the deterrent impact of the exclusionary rule as presently administered is incremented. However, invocation of the exclusionary rule in probation revocation proceedings would yield only a minimal additional deterrent effect which is outweighed by the needs of our probation system. Id. at 912. We think this analysis is applicable here and conclude that the needs of the judicial system in sentencing proceedings outweigh the possible benefits of applying the exclusionary rule. This court has recognized that the strong public interest in the imposition of a proper sentence makes it essential that a sentencing judge have broad access to relevant information concerning the defendant. Nukapigak v. State, 576 P.2d 982 (Alaska 1978). In so ruling, we cited Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342 (1948), in which the Supreme Court stated: , Highly relevant — if not e/sential — to [a trial judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly' applicable to [a] trial. Id. 337 U.S. at 247, 69 S.Ct. at 1083, 93 L.Ed. at 1342. The potentially harmful effect of the exclusionary rule on the sentencing process is apparent. It may deprive the superior court of access to reliable information which would be relevant to the judge's formulation of an appropriate sentence. United States v. Vandemark, 522 F.2d 1019 (9th Cir.1975); State v. Campbell, 43 Or.App. 979, 607 P.2d 745 (Or.App.1979). In addition, there is the possibility that sentencing proceedings may be delayed and disrupted if it is necessary to determine the legality of every piece of information presented to the judge. United States v. Lee, 540 F.2d 1205, 1211 (4th Cir.1976) cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). Against this potential damage to the proper functioning of the sentencing court, we must evaluate and balance the degree of deterrence which might be produced by suppression of such evidence. When faced with this question, the Court of Appeals for the Fourth Circuit stated: We think that if the exclusionary rule were extended to sentencing in the ordinary case, its additional deterrent effect would be so minimal as to be insignificant. Generally, law enforcement officers conduct searches and seize evidence for purposes of prosecution and conviction — not for the purpose of increasing a sentence in a prosecution already pending or one not yet begun. If they are to be deterred from official lawlessness, it would seem obvious that the only effective deterrence is the threat that the prosecution arising out of the specific search and seizure in which they acted illegally would be rendered ineffective. The additional threat that a future sentence might be less severe because they acted unlawfully can be predicted to have little practical effect to accomplish its main objective. United States v. Lee, 540 F.2d at 1211. A similar conclusion was reached by the Second Circuit in United States v. Schipani, 435 F.2d 26, 28 (2d Cir.1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971): We believe that applying the exclusionary rule for a second time at sentencing after having already applied it once at the trial itself would not add in any significant way to the deterrent effect of the rule. It is quite unlikely that law enforcement officials conduct illegal [searches] to build up an inventory of information for sentencing purposes, although the evidence would be inadmissible on the issue of guilt. On the other hand, several courts have recognized that the determination of the deterrent impact of the exclusion of illegal evidence in a sentencing hearing presents a difficult question. In State v. Banks, 157 N.J.Super. 442, 384 A.2d 1164 (N.J.Super.Ct. Law Div.1978), the court stated: Law enforcement officers are not likely to seize evidence unlawfully for the sole purpose of affecting a defendant's sentence. Usually the suppression of such evidence destroys the State's case so there is no sentence to affect. Two exceptions come to mind: (1) where police are assembling a dossier to be offered to a sentencing judge should the subject ever be convicted of an offense, and (2) where police have accumulated sufficient evidence to convict and then seize additional evidence unlawfully solely to affect the sentence. Id. 384 A.2d at 1169. As the Ninth Circuit observed in Verdugo v. United States, 402 F.2d 599, 612 (9th Cir.1968), cert. denied, 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971): It might be suggested that police officers are unlikely to be concerned with the sentence ultimately imposed, and, therefore, that excluding evidence at the sentencing stage cannot serve as a substantial deterrent. But this cannot be said, even now, of "the highly specialized unit which deals with specific kinds of offenses, . ". [Ejven if it were true that there is now no general consciousness of the potential utility of illegally seized evi dence to enhance sentence, we could not ignore the fact that announcement of an exception to the exclusionary rule would inevitably produce it. These courts recognized that in certain situations the exclusion of illegal evidence may have a significant deterrent effect and that the adoption of a blanket exception to the exclusionary rule would provide a new incentive for illegal police conduct. Even those courts which have allowed the admission of illegal evidence at sentencing have indicated that the exclusionary rule should be applied where the facts indicate that the police acted with a view toward enhancing the defendant's sentence. After reviewing these various policy considerations, we conclude that the Court of Appeals, in declining to apply the exclusionary rule in this case, struck a proper balance between the interests of the judicial system in sentencing and the purposes of the exclusionary rule. Under the test set out by the Court of Appeals, the illegal evidence is admissible only where it is clear that the evidence was not obtained for purposes of influencing the sentencing judge. Elson, 633 P.2d at 300. We agree that where the sole objective in seizing evidence in good faith, but contrary to the dictates of the fourth amendment, is to obtain a criminal conviction, the fact that such evidence is suppressible at trial is sufficient to satisfy the deterrent policy behind the exclusionary rule. In the case at bar, Elson has not argued that the police action was in any way taken for the purpose of enhancing his sentence. The record indicates that the search of El-son was instituted only after he ripped out the telephones in the visitor's room of the station house and the police were forced to restrain him. Prior to this, the police had not conducted any search and there is no evidence that Elson's second arrest for OMVI was motivated by a desire to obtain incriminating evidence against Elson. Elson further argues that the rationale of judicial integrity dictates that the exclusionary rule should be applied to bar the introduction of illegal evidence at sentencing. Under this rationale, the exclusion of illegal evidence preserves the judicial integrity of the legal system by insuring that the court is not made a party to the lawless invasion of a citizen's constitutional right. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Sears, 553 P.2d at 912. This court, however, has not adopted the position that the integrity of the judicial process requires that illegal evidence be held inadmissible for all purposes. Compare, State v. Sears, 553 P.2d at 913 with Id. at 915-19 (Connor, J., dissenting). In Sears, we held that the judicial integrity rationale would be implicated only in cases of gross police misconduct. We can conceive of circumstances which would lead to the application of the exclusionary rule to revocation of probation proceedings.... In short, police misconduct which shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom, would lead us to invoke the exclusionary rule. Sears, 553 P.2d at 914. We think that the Court of Appeals' approach is consistent with our position in Sears in that it provides for the exclusion of evidence obtained as a result of gross police misconduct. The Court of Appeals ruled that there was no evidence in the record of gross misconduct by the police which would necessitate the application of the exclusionary rule at Elson's sentencing hearing. This ruling is affirmed. In summary, we conclude that where the state is able to prove (1) that the illegal evidence is reliable, (2) that the police did not obtain the evidence as a result of gross or shocking misconduct, and (3) that the evidence was not obtained for purposes of influencing the sentencing court, the illegally seized evidence may be considered by the sentencing court in fashioning a defendant's sentence. For the reasons expressed, Elson's conviction is AFFIRMED. CONNOR, J., not participating. . Elson v. State, 633 P.2d 292 (Alaska App.1981). . AS 22.07.030 and Appellate Rule 302(a)(1). . Elson was also indicted but was later acquitted on the original OMVI charge. . During final argument to the jury, the prosecutor stated: How do we know that he knew he had it? From the trooper's testimony, that he tried to stop the trooper from getting it. It's that simple. Why would he try to stop the trooper from going into his pocket if he didn't know there was something in there that he didn't want the trooper to get? . U.S. Const.Amend. 4, Alaska Const, art. 1 § 14. . Alaska R.Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . There is no indication in the record that any criminal charges were filed in regard to the cocaine which was discovered on Elson's person at the police station. . Elson argued that the seizure of this evidence was improper under Zehrung v. State, 569 P.2d 189, 193 (Alaska 1977), modifíed, 573 P.2d 858 (1978), in which we held "a warrantless jailhouse inventory is without justification when an arrestee is not going to be incarcerated, and . is therefore constitutionally impermissible." The state argued that the search was valid since the police intended to incarcerate Elson on a malicious destruction of property charge, and Elson was unable to post bail immediately. .Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S.Ct. 2240, 2244-45, 49 L.Ed.2d 91, 97-99 (1976); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, 110 (1965). . At no point in the proceeding has Elson raised any challenge to the legality of the "pat down" search incident to the arrest for OMVI. . In rejecting Elson's argument, the Court of Appeals stated: We find that Bargas and Padgett do not apply to the facts of Elson's case. It is uncontested that Trooper Scott's actions were proper in searching Elson for weapons incident to the arrest for operating a motor vehicle under the influence of alcohol. Elson's resistance to the search cannot therefore be construed as the exercise of a constitutional right to resist an unlawful search. Elson v. State, 633 P.2d at 297. .It is now conceded that Trooper Scott's arrest and search of Elson were permissible. At the time he was arrested, however, Elson would have had no way of knowing whether the arrest and search were proper. Uncertainty exists even in situations where the police are acting pursuant to a search warrant. An individual presented with a warrant has no way of knowing whether the warrant (and therefore the search) is valid. . Higgins v. Wainwright, 424 F.2d 177 (5th Cir.1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970) (refusal to speak for identification purposes during lineup); Newhouse v. Misterly, 415 F.2d 514 (9th Cir.1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1001, 25 L.Ed.2d 258 (1970) (refusal to take blood alcohol test); People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401 (Cal.1966), cert. denied, 389 U.S. 850, 88 S.Ct. 43, 19 L.Ed.2d 119 (1967) (refusal to take breathalyzer test). But cf., State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (Minn.1973), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974) (admission of refusal to submit to blood alcohol test violates privilege against self-incrimination); State v. Neville, 312 N.W.2d 723 (S.D.1981), U.S. app. pndg. (admission of refusal to take blood test violates privilege against self-incrimination); Note, Constitutional Limitations on the Taking of Body Evidence, 78 Yale L.J. 1074, 1084 (1969). . We express no opinion as to the merits of these arguments or as to how we would resolve the self-incrimination issues presented in those cases. .The state argues that the exclusionary rule, which prohibits the admission of illegally seized evidence, was intended solely to deter illegal police conduct. Where the officer's actions are lawful the state asserts that no legitimate purpose would be served by excluding evidence of the individual's refusal. The state's argument on this point is misdirected since it fails to consider the indirect results of the admission of this evidence. By increasing the risks associated with the assertion of constitutional rights, the chances that individuals will consent to and thereby validate what would otherwise be illegal police conduct are heightened. In addition, adoption of the state's position would create opportunities for abuse since in the future police might seek permission to search, even if they know consent is not required, in an effort to bait a defendant into incriminating himself by refusing consent. The defendant in that position would face a potential no-win situation. By refusing, he incriminates himself; by consenting, he waives any later objection to the legality of the police action. . Miller, 462 P.2d at 427; see also, United States v. Walker, 409 F.2d 477 (9th Cir.1969); United States ex rel. Kilheffer v. Plowfield, 409 F.Supp. 677 (E.D.Pa.1976); State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428 (N.J.Ct.App. 1965); City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 (Ohio 1975), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975). . State v. Doe, 92 N.M. 100, 583 P.2d 464, 466-67 (N.M.1978) (citations omitted). See also, State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045-46 (Ariz.1977). .We again caution that this rule does not apply when the officer uses excessive or unnecessary force in conducting the search or when the search is attempted by one not known to be or not reasonably identifiable as a peace officer. See Gray v. State, 463 P.2d 897, 908 (Alaska 1970); Miller, 462 P.2d at 427 n. 4. . Alaska R.Evid. 403 provides: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This rule was not in effect at the time of trial. The commentary to the rule indicates, however, that it merely codifies the court's discretion under the common law. . The commentary to Alaska R.Evid. 403 provides in part: "Unfair prejudice" within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. . The conduct or demeanor of an accused at the time of arrest, which indicates a consciousness of guilt, has been held to be admissible as an implied admission. People v. Cramer, 67 Cal.2d 127, 60 Cal.Rptr. 230, 429 P.2d 582 (Cal.1967); State v. Lee, 201 Kan. 177, 440 P.2d 562 (Kan.1968); Commonwealth v. Montecalvo, 367 Mass. 46, 323 N.E.2d 888 (Mass.1975). Examples of these admissions by conduct include resisting arrest, attempting to escape, assuming a disguise or alias and fleeing from the scene of the crime. McCormick, Law of Evidence § 271, at 655 (2d ed. 1972). We have expressed serious doubt, however, as to the relevancy of evidence of flight to the issue of guilt. See Bargas v. State, 489 P.2d at 133. .To be relevant, evidence must have some tendency to make the existence of a proposition more or less probable than it would be without the evidence. Alaska R.Evid. 401. See Hawley v. State, 614 P.2d 1349 (Alaska 1980); Newsom v. State, 533 P.2d 904 (Alaska 1975). . In most cases after considering whether the evidence is relevant, we would then assess and balance the probability of unfair prejudice. In this case, however, Elson's claim of prejudice really collapses into his claim that the evidence lacked sufficient probative value to be considered relevant. Elson has made no claim or showing that the evidence was inflammatory or that it would be put to some improper use. . Initially, the Court of Appeals held that the Alaska Rules of Evidence do not require the exclusion of illegally seized evidence at sentencing. Although [Evidence] Rule 412, in effect at the time of Elson's sentencing, provides that illegally obtained evidence shall not be used over proper objection by the defendant in a criminal prosecution for any purpose [Evidence] Rule 101(c)(2) provides specifically that the evidence rules "do not apply to proceedings related to . sentencing, probation or parole." Elson v. State, 633 P.2d at 300. Elson has not raised any challenge to this aspect of the Court of Appeals' decision. Elson argues instead that the constitutional exclusionary rule should be applied to bar admission of illegally seized evidence at sentencing. . As the Court of Appeals noted, illegal evidence is suppressed not because it is untrustworthy (it is often highly reliable and probative), but rather because it was obtained through an unconstitutional invasion of the defendant's rights. . Cf. Allen, Federalism and the Fourth Amendment: A Requiem for Wolf, The Supreme Court Review 1, 36 (1961): Some states sought to avoid the heavy costs involved in complete acceptance or rejection of the exclusionary rule by holding the rule applicable only to certain categories of offenses. The consequences were predictable. The police, being of a pragmatic turn, tended to interpret the withdrawal of the rule in given offense categories as a license to proceed in those areas without legal restraint. (Footnotes omitted.) . United States v. Lee, 540 F.2d at 1212; United States v. Vandemark, 522 F.2d at 1022-1025; United States v. Schipani, 435 F.2d at 28; State v. Banks, 157 N.J.Super. 442, 384 A.2d 1164, 1169 (Super.Ct.N.J. 1978); State v. Swartz, 278 N.W.2d 22, 26 (Iowa 1979). . In State v. Sears, 553 P.2d at 914, we stated: In the event the lawless arrest and search or seizure is carried out by enforcement personnel with knowledge or reason to believe the suspect was a probationer, we would then apply the exclusionary rule in the probation revocation proceeding. For, in. such a circumstance, the bar of the exclusionary rule would act as a significant deterrent to searches and arrests consciously directed toward probationers. See also, United States v. Winsett, 518 F.2d 51, 54 n. 5 (9th Cir.1975). We think that the same result would be required where the police at the time of the illegal search or seizure were aware that the suspect was facing trial or sentencing on other charges. In such a circumstance, the police would have a significant incentive to carry out an illegal search since even if the evidence were suppressed at trial it might be admissible against the defendant at sentencing. .Recent Supreme Court cases have tended to focus primarily on deterrence as the rationale for the exclusionary rule. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). As a result of this emphasis on deterrence as the determinative factor in the application of the exclusionary rule, courts considering whether to exclude illegal evidence from sentencing have focused almost exclusively on whether it would provide any significant measure of deterrence. See, United States v. Schipani, 435 F.2d at 28; State v. Campbell, 607 P.2d at 748-50. . The Court of Appeals did not indicate which party bears the burden of proof as to the requirements for the admission of illegal evidence at sentencing. We think that the burden of proof is properly allocated to the state since it seeks to obtain the use of evidence which was obtained in violation of the defendant's constitutional rights. . One additional comment is warranted. Our decision in this case is based in part on the assumption that the incidence of admissions of illegal evidence at sentencings is extremely low. We are mindful, however, of the danger that the announcement of this exception to the exclusionary rule may create or increase police awareness of the potential utility of illegally seized evidence in sentencing proceedings. Thus, we think it advisable to caution that our holding is subject to reconsideration in the event of a significant increase in the use of illegally seized evidence in sentencing hearings. Cf. State v. Sundberg, 611 P.2d 44, 52 (Alaska 1980).

10429454

Gordon HAZELL, d/b/a Bonanza Realty, Appellant, v. Frederick RICHARDS, Appellee

Hazell v. Richards

1983-02-18

No. 6683

575

578

659 P.2d 575

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.

Gordon HAZELL, d/b/a Bonanza Realty, Appellant, v. Frederick RICHARDS, Appellee.

Gordon HAZELL, d/b/a Bonanza Realty, Appellant, v. Frederick RICHARDS, Appellee. No. 6683. Supreme Court of Alaska. Feb. 18, 1983. Randall Simpson, Jermain, Dunnagan & Owens, Anchorage, for appellant. Steven P. Oliver and Paul J. Nangle, Anchorage, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

2355

13969

OPINION MATTHEWS, Justice. In this dispute over a vendor's liability for a real estate sales commission, the facts are largely undisputed. The issue, on appeal from a summary judgment in the vendor's favor, is whether as a matter of law the real estate broker was • entitled to a commission under his contract with the vendor. Don Kling, a real estate agent employed by Bonanza Realty, a firm run by broker Gordon Hazell, induced Frederick Richards to sign an exclusive listing agreement on a duplex owned by Richards, at a price of $88,500. The listing agreement stated in part: This agency shall continue irrevocably for the full period beginning June 17, 1980, to midnight Aug. 17, 1980. Owner agrees to pay Agent six percent of the selling price as compensation if the property is sold or transferred by anyone, including Owner, during the contract period or if sold or transferred within - days after expiration of that period to anyone who negotiated during the period of this agreement with Agent or any other person authorized by Agent to sell or negotiate for the sale of the property. If an earnest money offer meeting the price and terms stated above is received and presented to Owner prior to the expiration of this agency, Owner agrees that the Agent shall be allowed 25 days to close or secure the closing of the transaction. If a deposit is forfeited by a prospective purchaser, the deposit shall be paid to or retained by Agent to the extent of the specified commission and any residue shall be paid to Owner. On July 14, 1980, Richards signed an earnest money contract, consisting of his ac ceptance of an offer by Samuel Krogstad, a prospect found by Kling. The offer allocates the cost of "broker's fee" to the vendor. The offer states in part: 1. 45 days allowed from date of seller's acceptance for search of title and completion of purchase. If title proves good and purchase is not completed within said period, the said deposit shall be forfeited by purchaser. 9. Time is the essence of this contract but either agent may, without notice, extend for a period of not to exceed 45 days the time for the performance of any act hereunder except the time for the acceptance hereof by seller. The acceptance states in part: I agree to pay forthwith to [Bonanza Realty] a commission amounting to $5310 for services rendered in this transaction. In the event of a forfeiture of the deposit as above provided, the said deposit shall be paid to or retained by the real estate firm to the extent of the agreed upon commission with residue to the seller. An addendum to the earnest money contract, executed July 26, states in part, "Buyer to apply for and obtain F.H.A.V.A./State-V.A. loan in the amount of $85,-950." Another phrase states "Buyer may occupy premises any time after the first day of August and to pay $400.00 per month". Krogstad took possession of the property and moved into one of the units shortly thereafter. In attempting to secure financing it was discovered that the duplex was not properly linked with the municipal sewer system, and that a loan could not be made until a proper link was made or funds were es-crowed for that purpose. The estimated cost for the hookup was over $5000, including city assessments. Richards thought perhaps Krogstad would split the cost of the new hookup with him, and he called around about getting the job done. He discovered that "[he] couldn't get ahold of anybody to do the work for at least six weeks, which was going to be in the freeze-up." Accordingly, he decided to remove the duplex from the market. Richards and Krogstad met with Hazell on October 3, and at the meeting Richards told Krogstad of his decision. Krogstad reluctantly agreed to withdraw his offer, and Richards agreed to return the earnest money deposit. Hazell, in accordance with his standard practice, did not demand what he regarded as his already-earned commission, since the deal had not closed. According to both Richards and Krogstad, there was no attempt to negotiate an arrangement concerning the hookup; Richards simply stated that he was withdrawing, and Krogstad acquiesced. Hazell's testimony does not contradict this version of the events. A week or so later, Krogstad decided to make another effort to close a deal on the duplex. He had not at that point vacated the property. He called Richards, and the two "were . able to come to terms." Krogstad arranged to get the sewer hookup job done and "supervised the project", which included doing some of the work himself. Richards agreed, on that basis, to pay the entire cost of the hookup. The job and assessments cost just under $4000. On cross motions for summary judgment, Hazell argued that the execution of the earnest money contract in July constituted a "sale" within the meaning of the listing agreement, and that he was therefore entitled to a commission. He contended that a commission was not barred by the fact that the sale was closed after the expiration of the listing agreement. This view is supported by former AS 08.88.361 (amended 1980), in effect at the time of this transaction, which stated: When commission is earned. A commission is earned when the real estate broker finds a buyer willing and able to purchase at a price and on terms set by the seller, providing negotiations with the buyer were initiated during the term of a valid listing agreement and within the time limit of the listing. Hazell also argued that the vendor waived any condition as to the time of closing. Richards argued that the listing agreement conditioned payment of a commission upon a closing within the time limit set by the agreement, and that since the transaction closed outside those limits no commission was earned. He further argued that any right to a commission was lost when the sales transaction was terminated on October 3. The superior court granted summary judgment in Richards' favor and Hazell appeals. Hazell's primary argument on appeal is that a property is "sold" within thé meaning of a listing agreement when an earnest money contract is signed, regardless of whether the sale closes prior to the expiration of the listing agreement, so long as it at some time results in a completed transaction. This argument is, as a general proposition, a valid one, but it does not necessarily take into account the specific language of the listing agreement, the extrinsic evidence, and Richards' argument based on that evidence. Richards' position is that closing the sale within twenty-five days of the earnest money contract was a condition of the duty to pay a commission, pursuant to this provision in the listing agreement: If an earnest money offer meeting the price and terms stated above is received and presented to Owner prior to the expiration of this agency, Owner agrees that the Agent shall be allowed 25 days to close or secure the closing of the transaction. Regarding this provision, Richards testified in his deposition as follows: A. He also wanted 45 days down there. Q. Yeah, I was going to ask you about that. A. And I said absolutely not. Twenty-five days maximum. In fact, I didn't want to give him any time on that. At the end of 60 days, we discussed that point, and he said, well, if they had done any work with the potential buyer, that they would need a minimum of 25 days, or they would need — That's what he said: 25 days, they could have it closed. I said, "If you can have it closed in 25 days from that date of August 17th," I said, "that's the maximum I'll give you." I didn't want to give him any time on that. He wanted 45, and I said, "Okay, I'll go for that, Don." Q. Why didn't you want to give him any time? A. I've explained it. I had a piece of property over at Knik that I wanted to buy. It was a very nice piece of property, and the time was of the essence to get this thing sold, so I could cash the person out on that piece of property over there. There is no other evidence concerning this time limit relevant to the expressed intent of the parties prior to entering the contract, and Richards' testimony concerning the contract as a whole was unimpeached and un-contradicted. Since there are no factual disputes concerning the extrinsic circumstances relevant to the interpretation of the contract, its meaning is a question of law, and we will enforce that interpretation which is most reasonable in light of the terms and circumstances. See Dahl v. Griffin, 652 P.2d 84, 87 n. 6 (Alaska 1982); Starry v. Horace Mann Ins. Co., 649 P.2d 937, 939 (Alaska 1982). Richards' testimony is, in our opinion, insufficient to establish that the twenty-five day limit was a "condition" to the duty to pay a commission, given the specific agreement to pay on "sale." We read the twenty-five day limit, and Richards' testimony, as establishing the terms which Richards could have insisted on in entering a contract of sale. In fact he did not insist on a twenty-five day closing limit. Instead the limit was set at forty-five days, extendable by the agent for another forty-five days. At the expiration of that time limit it may be that Richards could have walked away from the earnest money agreement without incurring liability either to the prospective buyer or the broker. But it is quite another thing to say that Richards could refuse to carry through on the earnest money contract and then sell to the same prospect without incurring liability for a commission. Nothing in the listing or in the earnest money contract suggests that such a result was contemplated. By contrast, Hazell's interpretation is consistent with the language of the listing agreement. In the "sale after expiration clause" of that agreement, the blank for days was marked through, but the remaining language of the clause was left intact. The clause was thus effective for a reasonable time. When this clause is considered it is obvious that the expiration of the closing limit does not eliminate Richards' liability for a commission. If it did, the clause would be without meaning. Further, this result is consistent with the manner in which listing agreements are generally interpreted. Accordingly, we hold that the contract entitled Hazell to a commission if the sale to Krogstad closed within a reasonable period of time. Having made this determination, it follows that on the facts of this case, Hazell was entitled to a commission. The evidence is uncontested that Hazell's "abandonment" of the contract at the October 3 meeting was in accordance with his policy of not demanding payment of commissions if sales did not close. When the sale did in fact close approximately one week later, under the terms of the listing agreement Hazell became entitled to 6% of the selling price. We therefore REVERSE the judgment, and REMAND for entry of a judgment in Hazell's favor. . According to Krogstad, Hazell informed him that Richards would insist on this. Krogstad consulted an attorney, who advised him that it was not worth contesting liability for the sewer linkup, and to forget about the duplex if Richards wouldn't pay the entire cost. Krogstad told Hazell that that was his position, and the meeting with Richards followed. . AS 08.88.361 was amended by ch. 167, § 28, SLA 1980 so that it now states: When commission is earned. A commission is earned when the real estate broker fulfills the terms of a written personal services contract. . See Peterson v. Wirum, 625 P.2d 866, 869-70 (Alaska 1981): [S]ummary judgment is inappropriate when the affidavits and other evidence before the trial court establish that a factual dispute exists as to the expressed intent of the parties. . But [if] the evidence before the superior court at the time of the cross-motions for summary judgment did not indicate any dispute as to the material facts pertain ing to the intent of the parties [then] summary judgment is appropriate.... Difference of opinion among the parties as to their subjective intent, expressed during the litigation, do not establish an issue of fact regarding the parties' reasonable expectations at the time they entered into the contract, since such self-serving statements are not considered to be probative. Rather, the court must look to express manifestations of each party's understanding of the contract in attempting to give effect to the intent behind the agreement. (Emphasis added; citations and footnotes omitted.) . Interpreting the provision in this manner comports with the general principle of contractual construction favoring promises over conditions. See Restatement of Contracts § 261 (1932); see also 3 L. Corbin, Corbin on Contracts § 559, at 265 n. 10 (1960). . Similar treatment was given to a similar situation in Stromberg v. Seaton Ranch Co., 160 Mont. 293, 502 P.2d 41, 49 (Mont.1972); see generally Annot., 51 A.L.R.3d 1149, 1214-16 (1973). .Restatement (Second) of Agency § 445 comment e (1958) states: [T]he principal's promise to pay a commission becomes binding upon the production by the broker of a customer ready, able, and willing to consummate the transaction on the specified terms. This promise, although now binding, does not call for performance unless there has been a fulfillment of the further condition, either that such customer shall make a contract enforceable against him, or that the conveyance shall be consummated, except that if the principal is responsible for the nonperformance of such condition, it is dispensed with and the promise to pay the commission becomes unconditional. See generally Annot., 26 A.L.R. 784 (1923); Annot., 27 A.L.R.2d 1348 (1953); Annot., 46 A.L.R.2d 848 (1956); Annot., 51 A.L.R.3d 1149 (1973).

11955670

Ronald J. LaVIGNE, Petitioner, v. STATE of Alaska, Respondent

Lavigne v. State

1991-05-31

No. S-3873

217

222

812 P.2d 217

812

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:40:22.055872+00:00

CAP

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

Ronald J. LaVIGNE, Petitioner, v. STATE of Alaska, Respondent.

Ronald J. LaVIGNE, Petitioner, v. STATE of Alaska, Respondent. No. S-3873. Supreme Court of Alaska. May 31, 1991. Susan Orlansky, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for petitioner. Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for respondent. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2614

15898

OPINION MOORE, Justice. Petitioner Ronald J. LaVigne's lawyer denied him the opportunity to testify in his own behalf at his criminal trial. After being convicted by a jury, LaVigne moved for a new trial on the grounds that his rights under the United States and Alaska Constitutions were violated. The superior court denied LaVigne's motion after LaVigne refused to offer proof of what his testimony would have been, thus establishing that he was prejudiced by the violation of his rights. The court of appeals upheld the decision. LaVigne v. State, 788 P.2d 52 (Alaska App.1990). It agreed that any error was harmless since LaVigne had not shown that it prejudicially affected the outcome of his trial. Id. LaVigne then petitioned this court, claiming that the outcome-affecting harmless error test should not apply where a criminal defendant has been denied the fundamental constitutional right to testify. We find that the lower courts applied an improper standard of review to the denial of LaVigne's constitutional right, and we therefore reverse and remand to the superi- or court for further proceedings. I. Ronald LaVigne was charged with the theft and unlawful possession of a backhoe loader on June 20, 1986. At his jury trial for the theft, LaVigne expressed his desire to testify in his own behalf to his lawyer. However, because counsel was aware that a prior conviction for felony theft could be used to impeach LaVigne, he advised against LaVigne's taking the stand. Ultimately, LaVigne's lawyer unilaterally decided that LaVigne would not testify. He never informed LaVigne of his right to insist on testifying in spite of counsel's advice. LaVigne was not aware that he had the power to override his attorney's advice. Following his conviction, LaVigne retained new counsel and moved for a new trial, claiming that he received ineffective assistance of counsel because his lawyer usurped his decision whether to take the stand. The superior court relied on Barry v. State, 675 P.2d 1292 (Alaska App.1984), and United States v. DeRobertis, 811 F.2d 1008 (7th Cir.1987), to shift to LaVigne the burden of establishing a reasonable probability that the denial of his right to testify at trial affected the outcome of the proceedings. The court then held an evidentiary hearing in which LaVigne could provide evidence of what his testimony at trial would have been so that he could establish prejudice due to the violation of his rights. Following the advice of new counsel, however, LaVigne apparently declined to testify further. The superior court denied LaVigne's motion for a new trial because he failed to show any prejudice. The court of appeals affirmed the decision. LaVigne v. State, 788 P.2d 52 (Alaska App.1990). It agreed that a criminal defendant whose right to testify has been violated must make some minimal showing as to the nature of his testimony so that the trial court can assess whether the testimony would have affected the outcome of the trial. Id. at 55. LaVigne petitioned this court, claiming that the violation of his constitutional right to testify in his own behalf mandates the per se reversal of his ensuing conviction. II. The issue presented in this appeal poses a question of law subject to de novo review. The duty of this court is to adopt the rule of law which is most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281 (Alaska 1979). III. In Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the United States Supreme Court recognized that a criminal defendant has a constitutional right to testify in his or her own behalf. It found that this right is grounded in the Fifth, Sixth and Fourteenth Amendments. It is "essential to due process of law in a fair adversary process" and, therefore, guaranteed by the Fourteenth Amendment. Id. at 51, 107 S.Ct. at 2709 (citing Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975)). The right is "also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call 'witnesses in his favor.' " Id. 483 U.S. at 52, 107 S.Ct. at 2709. Moreover, the opportunity to testify is a "necessary corollary to the Fifth Amendment's guarantee against compelled testimony." Id. In Alaska, the state constitution similarly accords criminal defendants a constitutional right to testify in their own behalf. Hughes v. State, 513 P.2d 1115 (Alaska 1973). In Hughes, we determined that a defendant's right to testify in his own defense is of such fundamental importance that "[n]o defendant requesting to testify should be deprived of exercising that right and conveying his version of the facts to the court or jury, regardless of competent counsel's advice to the contrary." Id. at 1119. The constitutional right to testify is both personal to the criminal defendant and fundamental to the dignity and fairness of the judicial process. See United States v. Martinez, 883 F.2d 750, 756 (9th Cir.1989), petition for cert. filed, 58 U.S. L.W. 2210 (U.S. May 17, 1990) (No. 89-7539); United States v. Teague, 908 F.2d 752, 757 (11th Cir.1990); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 93, 112 L.Ed.2d 65 (1990); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 118-19 (3rd Cir.1977). The ultimate decision whether to exercise the right therefore rests with the defendant, not with defendant's counsel. For this reason, counsel may not effectively waive a defendant's right to testify against the defendant's will. Hughes v. State, 513 P.2d 1115, 1119 (Alaska 1973) ("The ultimate decision should be that of the defendant, made with advice of counsel.") There is no dispute on these facts that LaVigne's attorney unlawfully usurped LaVigne's decision whether to testify, and LaVigne will not be bound by his counsel's conduct. The parties initially characterized the issue in this case as one of deprivation of the right to effective assistance of counsel; the state continues to argue the case under this theory. However, we wish to be clear that an ineffective assistance of counsel analysis does not provide the proper framework for reviewing the constitutional violation at issue. Although it is clear that counsel's conduct in unlawfully usurping LaVigne's decision whether to testify fell below the standard of competence required of criminal defense attorneys, this fact alone does not compel application of the test for ineffective assistance of counsel. Rock v. Arkansas informs us that La-Vigne's claim implicates his Fifth, Sixth and Fourteenth Amendment rights, not merely his Sixth Amendment right to the effective assistance of counsel. 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The conduct of LaVigne's lawyer at trial is therefore troublesome "not just for its possible impact on the reliability of the verdict, i.e., for its Sixth Amendment implica-tions_ [Cjounsel's actions in not permitting [defendant the opportunity to testify affected the very fairness of the trial process itself." United States v. Butts, 630 F.Supp. 1145, 1148 (D.Me.1986). We therefore reject the state's argument in favor of limiting the scope of LaVigne's claim to ineffective assistance of counsel. IV. We turn next to the standard of review which applies to violations of this personal and fundamental constitutional right. La-Vigne argues that the violation of his right to participate at trial compels the per se reversal of his conviction. The state contends that, because LaVigne was not prejudiced by the violation of his right, a harmless error standard should apply, and La-Vigne's conviction should be affirmed. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court discussed the standard of review for constitutional errors. The Court recognized that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Id. at 23, 87 S.Ct. at 827. In such cases, a rule of per se reversal must apply. However, the Court also acknowledged that some constitutional errors may be so insignificant in the setting of a particular case that "they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of [a] conviction." Id. at 22, 87 S.Ct. at 827. In such situations, the Court determined that constitutional error is harmless if a reviewing court finds the error "harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828. This court restated the Chapman standard for certain federal constitutional errors in Love v. State, 457 P.2d 622 (Alaska 1969). We hold today that this standard of "harmless error beyond a reasonable doubt" applies to LaVigne's claim of constitutional error. The "harmless error beyond a reasonable doubt" standard has been applied to other cases involving violations of the right to testify. See Wright v. Estelle, 549 F.2d 971 (5th Cir.1977), aff'd, 572 F.2d 1071 (5th Cir.1978) (en banc), cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978); United States v. Teague, 908 F.2d 752 (11th Cir.1990). In Teague, the Eleventh Circuit Court of Appeals explained that the burden of proving that the error was harmless beyond a reasonable doubt rests with the prosecution. Id. at 760. Because of the particular facts of LaVigne's case, we must set forth a more detailed explanation of the burden shifting process. Application of this standard in the present case involves a two-step process. First, after showing that his constitutional right to testify has been denied, LaVigne bears an initial burden to show he would have offered relevant testimony had he been allowed to testify at his trial. Because LaVigne's right to testify is a fundamental right to participate in the judicial process, this preliminary burden is a minimal one. We acknowledge that there are myriad reasons why an accused may wish to testify in his own behalf. For example: In the narrow world of the courtroom the defendant may have faith, even if mistaken, in his own ability to persuasively tell his story to the jury. He may desire to face his accusers and the jury, state his position, and submit to examination. His interest may extend beyond content to the hope that he will have a personalized impact upon the jury or gain advantage from having taken the stand rather than to seek the shelter of the Fifth Amendment. Or, without regard to impact upon the jury, his desire to tell 'his side' in a public forum may be of overriding importance to him. Indeed, in some circumstances the defendant, without regard to the risks, may wish to speak from the stand, over the head of judge and jury, to a larger audience. It is not for his attorney to muzzle him. Wright v. Estelle, 572 F.2d at 1078 (Godbold, J., dissenting). In order to respect these considerations, we emphasize that the defendant's initial burden of showing he had relevant testimony to offer at his trial is a light one. In this case, the record reveals that La-Vigne reacted to the testimony of several of the state's witnesses and clearly indicated a desire to take the stand to respond to their testimony. LaVigne's attorney testified: "[Sjeveral times, you know, when some of the witnesses were testifying, you know, [LaVigne] says, you know, they're really cutting me up. And he says, I've got to testify. And I said, no." Although LaVigne's reaction is not sufficient to meet his burden, his behavior does indicate that he clearly wished to testify in response to the prosecution's case. Due to the importance of the constitutional rights involved and the uncertainty of the applicable law, it is our view that this case should be remanded to the superior court so that, in light of the analysis we have set forth herein, the defendant may be given an opportunity to show that he would have offered relevant testimony had he been allowed to testify. If the defendant's initial burden is met, the burden will then shift to the state to show that denial of his constitutional right was harmless error beyond a reasonable doubt. See United States v. Teague, 908 F.2d 752 (11th Cir.1990). Unlike the minimal initial burden borne by the defendant, however, the state's burden is a heavy one. This is largely due to the limited ability of appellate courts to judge accurately the possible effect on the jury of a defendant's appearance on the stand. Although we agree that an appellate court can competently weigh the content of the defendant's testimony, a reviewing court is unable to measure the potential impact of many other factors on the jury. It has been said that an appellate court cannot weigh the possible impact upon the jury of factors such as the defendant's willingness to mount the stand rather than avail himself of the shelter of the Fifth Amendment, his candor and courtesy (or lack of them), his persuasiveness, his respect for court processes. These are elusive and subjective factors, even among persons who might perceive and hear the defendant, but more significantly, they are matters neither communicated to an appellate judge nor susceptible of communication to him. Appellate attempts to appraise impact upon the jury of such unknown and unknowable matters is purely speculative. Wright v. Estelle, 572 F.2d at 1082 (Godbold, J., dissenting); see also McKaskle v. Wiggins, 465 U.S. 168, 179, 104 S.Ct. 944, 951, 79 L.Ed.2d 122 (1984) ("From the jury's perspective, the message conveyed by the defense may depend as much on the messenger as on the message itself.") Due to the inherently speculative nature of an appellate court's task in cases like LaVigne's, we expect there will be relatively few cases in which the reviewing court can confidently assert that the denial of the right to testify was so insignificant as to constitute harmless error beyond a reasonable doubt. See State v. Wickham, 796 P.2d 1354, 1358 (Alaska 1990) (The factual vacuum created by the absence of the defendant's testimony and the state's cross-examination and rebuttal generates a significant risk that appellate review based on harmless error will be wholly speculative.) However, we find that application of the Chapman rule will promote judicial economy without sacrificing fairness in those cases where the state can prove beyond a reasonable doubt that the error was harmless. To avoid future cases such as La-Vigne's, we believe that trial judges should take steps to insure that a criminal defendant's failure to take the stand in his or her own defense was the result of a knowing and voluntary decision made by the defendant. To accomplish this, we believe judges should make an on-the-record inquiry after the close of the defendant's case, although out of the jury's hearing, into whether a nontestifying defendant understands and voluntarily waives his right. Such action insures a valid waiver of the defendant's right. It will also assist in any subsequent appellate review of a defendant's claim to the contrary. Because the lower courts did not apply the analysis we have set forth today, we REVERSE the decision of the court of appeals and REMAND to the trial court for application of the standard discussed above. . See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (impartial judge).

10384898

STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and Alaska Industrial Developmental Authority, Appellant, v. ENSERCH ALASKA CONSTRUCTION, INC., Ralph C. LaRose, Jr.; Kenneth C. Opel; Nana Regional Corporation, Inc.; Daniel Harvey; Melvin Morena; and Northwest Arctic Borough, a Home Rule Municipality, Appellees; NANA REGIONAL CORPORATION, INC., Daniel Harvey, and Melvin Morena, Appellants, v. STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and Alaska Industrial Developmental Authority; Enserch Alaska Construction, Inc.; Ralph C. LaRose, Jr.; Kenneth L. Opel; and Northwest Arctic Borough, a Home Rule Municipality, Appellees; ENSERCH ALASKA CONSTRUCTION, INC., Cross/Appellants, v. STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and The Alaska Industrial Developmental Authority; Nana Regional Corporation, Inc.; Daniel Harvey; Melvin Morena; Northwest Arctic Borough, a Home Rule Municipality; Ralph C. LaRose, Jr.; and Kenneth L. Opel, Cross/Appellees; NORTHWEST ARCTIC BOROUGH, a Home Rule Municipality, Appellant, v. ENSERCH ALASKA CONSTRUCTION, INC.; Ralph C. LaRose, Jr.; Kenneth C. Opel; State of Alaska, acting By and Through its Departments of Transportation and Labpr, and Alaska Industrial Developmental Authority; Nana Regional Corporation, Inc.; Daniel Harvey; and Melvin Morena, Appellees

State ex rel. Departments of Transportation & Labor v. Enserch Alaska Construction, Inc.

1989-12-18

Nos. S-2693, S-2694, S-2731 and S-2736

624

643

787 P.2d 624

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and Alaska Industrial Developmental Authority, Appellant, v. ENSERCH ALASKA CONSTRUCTION, INC., Ralph C. LaRose, Jr.; Kenneth C. Opel; Nana Regional Corporation, Inc.; Daniel Harvey; Melvin Morena; and Northwest Arctic Borough, a Home Rule Municipality, Appellees. NANA REGIONAL CORPORATION, INC., Daniel Harvey, and Melvin Morena, Appellants, v. STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and Alaska Industrial Developmental Authority; Enserch Alaska Construction, Inc.; Ralph C. LaRose, Jr.; Kenneth L. Opel; and Northwest Arctic Borough, a Home Rule Municipality, Appellees. ENSERCH ALASKA CONSTRUCTION, INC., Cross/Appellants, v. STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and The Alaska Industrial Developmental Authority; Nana Regional Corporation, Inc.; Daniel Harvey; Melvin Morena; Northwest Arctic Borough, a Home Rule Municipality; Ralph C. LaRose, Jr.; and Kenneth L. Opel, Cross/Appellees. NORTHWEST ARCTIC BOROUGH, a Home Rule Municipality, Appellant, v. ENSERCH ALASKA CONSTRUCTION, INC.; Ralph C. LaRose, Jr.; Kenneth C. Opel; State of Alaska, acting By and Through its Departments of Transportation and Labpr, and Alaska Industrial Developmental Authority; Nana Regional Corporation, Inc.; Daniel Harvey; and Melvin Morena, Appellees.

STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and Alaska Industrial Developmental Authority, Appellant, v. ENSERCH ALASKA CONSTRUCTION, INC., Ralph C. LaRose, Jr.; Kenneth C. Opel; Nana Regional Corporation, Inc.; Daniel Harvey; Melvin Morena; and Northwest Arctic Borough, a Home Rule Municipality, Appellees. NANA REGIONAL CORPORATION, INC., Daniel Harvey, and Melvin Morena, Appellants, v. STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and Alaska Industrial Developmental Authority; Enserch Alaska Construction, Inc.; Ralph C. LaRose, Jr.; Kenneth L. Opel; and Northwest Arctic Borough, a Home Rule Municipality, Appellees. ENSERCH ALASKA CONSTRUCTION, INC., Cross/Appellants, v. STATE of Alaska, acting By and Through its DEPARTMENTS OF TRANSPORTATION AND LABOR, and The Alaska Industrial Developmental Authority; Nana Regional Corporation, Inc.; Daniel Harvey; Melvin Morena; Northwest Arctic Borough, a Home Rule Municipality; Ralph C. LaRose, Jr.; and Kenneth L. Opel, Cross/Appellees. NORTHWEST ARCTIC BOROUGH, a Home Rule Municipality, Appellant, v. ENSERCH ALASKA CONSTRUCTION, INC.; Ralph C. LaRose, Jr.; Kenneth C. Opel; State of Alaska, acting By and Through its Departments of Transportation and Labpr, and Alaska Industrial Developmental Authority; Nana Regional Corporation, Inc.; Daniel Harvey; and Melvin Morena, Appellees. Nos. S-2693, S-2694, S-2731 and S-2736. Supreme Court of Alaska. Dec. 18, 1989. Rehearing Denied Feb. 20, 1990. Jan Hart DeYoung, Asst. Atty. Gen., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for State of Alaska. J.W. Sedwick, Burr, Pease & Kurtz, Anchorage, for Enserch Alaska Const., Inc., Ralph C. LaRose, Jr. and Kenneth L. Opel. Robert M. Johnson, James R. Szender, Wohlforth, Argetsinger, Johnson & Brecht, Anchorage, for NANA Regional Corp., Inc., Daniel Harvey and Melvin Morena. Richard H. Erlich, Kotzebue, for Northwest Arctic Borough. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

12756

80968

OPINION MOORE, Justice. This appeal involves the constitutionality of AS 36.10.160 which provides a hiring preference to residents of economically distressed zones for certain employment on public works projects. The superior court, Judge Douglas J. Serdahely, declared the law unconstitutional under Alaska's equal protection clause. We affirm the superior court's decision on the unconstitutionality of the regional preference law and its rulings concerning waiver, intervention, and standing. We reverse the superior court's ruling on the right to seek damages for the state's enforcement of the unconstitutional law. I. FACTS In January 1986, we held that the state's local hire law, AS 36.10.010, violated the privileges and immunities clause of article IV, section 2 of the United States Constitution. Robison v. Francis, 713 P.2d 259 (Alaska 1986). In May 1986, the Legislature enacted a new statute creating four hiring preferences on public works projects. The first is a preference for eligible individuals residing within a zone of underemployment. AS 36.10.150. The second is a preference for eligible residents of an economically distressed zone. AS 36.10.160. This is the preference at issue in this appeal. The third is a preference for eligible economically disadvantaged minority residents of a zone. AS 36.10.170. The fourth is for eligible economically disadvantaged female residents of a zone. AS 36.10.175. These employment preferences are not self-executing. To trigger application of the employment preference provisions, the Commissioner of the Department of Labor ("the Commissioner") must determine that a zone is economically distressed. AS 36.-10.160(a). An economically distressed zone is an area in which: (1) zone residents have per capita income less than 90 percent of the United States per capita income, or zone unemployment exceeds national unemployment by at least five percent; (2) the lack of employment opportunities substantially contributes to social or economic problems; and (3) employment of nonresident workers is a peculiar source of unemployment for resident workers. In 1987, the state and Enserch Alaska Construction, Inc. ("Enserch") entered into a contract for the construction of a fifty-five mile road from the Bering Sea coast to the proposed Red Dog Mine in the Northwest Arctic Borough ("the Borough"). The contract required Enserch to "comply with all applicable laws and regulations regarding the hiring of Alaska residents now in effect or that may subsequently take effect...." When Ensereh started work on the project, the Commissioner had not yet designated any area of the state as an economically distressed zone. However, in 1987, the Borough asked the Commissioner to declare the Borough an economically distressed zone. The Department of Labor ("DOL") gathered the information necessary to evaluate whether the Borough was eligible for such a designation. After reviewing this information, the Commissioner issued emergency regulations declaring the Borough an economically distressed zone. As a result of the Borough's designation as an economically distressed zone, the road project was subject to the employment preference provisions. AS 36.10.160. Thus, Ensereh was required to fill at least fifty percent of the positions available in certain designated crafts with eligible, qualified Borough residents. After implementation of the preference, employment of the Borough residents on the project increased from fifteen percent to forty-two percent. II. PROCEEDINGS In November 1987, Ensereh filed suit against the state seeking (1) a declaration that AS 36.10.160 violated state and federal equal protection guarantees and the federal privileges and immunities clause, and (2) damages for its increased costs in complying with the law. In December 1987, En-sereh moved for partial summary judgment. The superior court permitted the Borough, NANA Regional Corporation, Inc. ("NANA"), Daniel Harvey, and Melvin Morena to intervene as defendants. The court also allowed Kenneth L. Opel and Ralph C. LaRose, Jr. to intervene as plaintiffs. Ensereh moved for partial summary judgment that the employment preference deprived it of equal protection of the laws and the privileges and immunities of national citizenship. The state cross-moved for summary judgment on the ground that Ensereh expressly had waived its right to recover damages. NANA moved to dismiss the complaint on the grounds of standing, ripeness, waiver of Enserch's right to challenge the constitutionality of the law, and failure to state a claim upon which relief may be granted. The superior court entered partial summary judgment for Ensereh. The court held that Ensereh did not waive its right to challenge the constitutionality of the regional preference law. The court held that Opel, LaRose, and Ensereh had citizen-taxpayer standing to challenge the preference law on equal protection grounds; however, they lacked standing to assert a federal privileges and immunities challenge. The court then concluded that the preference law violated the equal protection provision of the Alaska Constitution. Finally, the court ruled that the state was not entitled to summary judgment on the issue whether Ensereh waived its right to seek damages for the state's enforcement of the law be cause evidence in the record presented genuine issues of material fact. The court entered partial final judgment pursuant to Civil Rule 54(b). The state and NANA appeal. They argue that: (1) Enserch waived its right to challenge the constitutionality of the regional preference law; (2) the superior court abused its discretion in permitting LaRose and Opel to intervene as plaintiffs; (3) Enserch, LaRose, and Opel lack standing to raise an equal protection challenge; (4) the regional preference law does not deny equal protection; and (5) Enserch waived its right to recover damages for the state's enforcement of the law. The Borough appealed, arguing that AS 36.10.160 is constitutional. Enserch cross-appealed, arguing that it had not waived its right to recover damages as a matter of law. III. WAIVER As a threshold matter, the state and NANA argue that the superior court erred in concluding that Enserch did not waive its right to challenge the constitutionality of AS 36.10.160. Enserch contends that, as a matter of law, it did not waive its right to challenge the law. The state relies on Section 17 of its contract with Enserch which provides in part, "The Contractor shall comply with all applicable laws and regulations regarding the hiring of Alaska residents now in effect or that may subsequently take effect during the term of this contract." Enserch argues that the contract provision only applies to constitutional laws. It asserts that the state's enforcement of a condition requiring compliance with an unconstitutional law would constitute a breach of the implied covenant of good faith and fair dealing. Thus, Enserch concludes that it was entitled to summary judgment because the provision is unenforceable as a matter of law. We conclude that Enserch did not waive its right to challenge the constitutionality of the regional preference law. The superor court correctly held that Enserch could maintain its action for declaratory relief. In Salla v. County of Monroe, 64 A.D.2d 437, 409 N.Y.S.2d 903 (1978), aff'd, 48 N.Y.2d 514, 423 N.Y.S.2d 878, 399 N.E.2d 909 (1979), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 262 (1980), a contractor accepted a county contract which required compliance with all local and state laws, including local hire provisions. 409 N.Y.S.2d at 905. The contractor sued the state, seeking a declaration that a local hire law violated the state constitution. The court held that a "public contract should not be conditioned on a waiver of constitutional rights." 409 N.Y.S.2d at 907. In a similar case, a New York appellate court explained: The fact that the petitioner has signed contracts with the Department which set forth the debarment policy [for failure to comply with state affirmative action programs] should not work a waiver of petitioner's right to challenge the Department's authority to establish such a policy. Otherwise, an agency could create by contract authority . which has not been delegated by the Legislature. Callahan Industries, Inc. v. White, 118 A.D.2d 167, 503 N.Y.S.2d 930, 933 n. * (1986) (citations omitted). As a matter of public policy, we conclude that a provision in a public contract requiring compliance with state laws does not prevent the contractor from challenging the law as unconstitutional. As we noted in Lynden Transport, Inc. v. State, 532 P.2d 700, 717 (Alaska 1975), "[although most constitutional rights are subject to waiver, they must be knowingly and voluntarily waived. In civil cases (no less than in criminal), the courts must indulge every reasonable presumption against their waiver." Enserch did not explicitly waive its right to challenge the constitutionality of the regional preference law. The contract only required compliance "with all applicable laws and regulations regarding the hire of Alaska residents now in effect or that may subsequently take effect...." Enserch's promise to comply with the regional preference law and its implementing regulations is not a promise to refrain from challenging its constitutionality. Accordingly, we conclude that the superior court was correct in ruling that Enserch did not waive its right to challenge the constitutionality of the regional preference law or its implementing regulations. IV. INTERVENTION BY OPEL AND LaROSE The State and NANA argue that the superior court abused its discretion in allowing Opel and LaRose to intervene in this action because their motion was filed six days before the scheduled motions for summary judgment. Enserch contends that the court acted within its discretion by permitting intervention and continuing oral argument for a week. The grant or denial of a motion for permissive intervention is subject to review for abuse of discretion. State v. Weidner, 684 P.2d 103, 113 (Alaska 1984). Anyone may intervene in an action when the applicant has a claim sharing common questions of law or fact with the main action. Alaska R.Civ.P. 24(b). In addition, the motion to intervene must be timely and should not unduly delay or prejudice the adjudication of the rights of the original parties. Id. The state concedes that Opel and LaRose raise the same constitutional issues asserted by Enserch. However, the state and NANA contend that they were unduly prejudiced by Opel and LaRose's late intervention and the superior court's refusal to extend time for discovery on the inter-venors' claims beyond the seven days granted. We first note that Opel and La-Rose did not raise any issues not already raised by Enserch. Second, the state and NANA were able to depose the intervenors before argument on the summary judgment motion. In light of these facts, we conclude that the superior court did not abuse its discretion by permitting Opel and LaRose to intervene. V. STANDING The state and NANA argue that Opel, LaRose, and Enserch lack standing to assert the equal protection claim. The superior court ruled that Opel, LaRose, and Enserch had citizen-taxpayer standing to challenge the regional preference law on equal protection grounds. "Standing in our state courts is not a constitutional doctrine; rather, it is a rule of judicial self-restraint based on the principle that courts should not resolve abstract questions or issue advisory opinions." The "concept of standing has been interpreted broadly in Alaska." Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987). Citizen-taxpayer standing cannot be claimed as a matter of right when challenging government conduct. 736 P.2d at 329. Instead, the party asserting citizen-taxpayer standing must meet the following criteria: First, the case in question must be one of public significance. One measure of significance may be that specific constitutional limitations are at issue_ Second, the plaintiff must be appropriate in several aspects. For example, standing may be denied if there is a plaintiff more directly affected by the challenged conduct in question who has or is likely to bring suit. The same is true if there is no true adversity of interest, such as a sham plaintiff whose intent is to lose the lawsuit and thus create judicial precedent upholding the challenged action. Further, standing may be denied if the plaintiff appears to be incapable, for economic or other reasons, of competently advocating the position it has asserted. 736 P.2d at 329-30 (footnotes omitted). Opel and LaRose are construction workers who do not reside in the Borough. Opel is a resident of Anchorage and a heavy equipment operator. He was employed by Enserch on the road project dur ing the fall of 1987 until the project shut down for the winter. He asserts that because of the regional preference law it is uncertain whether he will be rehired by Enserch in the spring. LaRose is an electrician and a resident of Fairbanks who was turned away from the job site the day that Enserch received notice of the emergency order implementing the employment preferences. Several weeks later, LaRose was hired to work on the project. He claims that he lost at least five weeks of wages because of the preference. We agree with the superior court that LaRose and Opel have citizen-taxpayer standing to challenge the preference under the Alaska equal protection clause. Initially, we note that the constitutionality of the regional preference - law is clearly a question of public significance. As we noted in Trustees, one measure of significance is that a specific constitutional limitation is at issue. Here Opel and LaRose argue that the regional preference law violates the specific guarantee of "equal opportunity" for all Alaskans found in article I, section 1 of the Alaska Constitution. Second, we believe that both individuals are appropriate parties to bring this suit. Opel and LaRose are construction workers who have earned their livelihood in part from working on public works projects. Each intends to continue his employment with Enserch but is concerned that the resident hiring preferences may deny him an opportunity to do so. As a result, there is no doubt that Opel and LaRose meet the basic requirement of adversity necessary for standing. See Trustees, 736 P.2d at 327. They are not sham plaintiffs; no one has questioned the sincerity of their belief that the regional preference law is unconstitutional. They are represented by competent counsel who have forcefully presented their position. Nor do we believe that there are other persons more directly affected who have or are likely to bring suit. Consequently, we affirm the superior court on the issue of Opel and LaRose's standing to challenge the regional preference law under the Alaska Constitution. The state and NANA contend that Enserch lacks standing since it cannot assert the constitutional rights of a third party such as an applicant denied employment due to the employment preference law. We need not reach the question of third party standing because we believe that Enserch itself possesses a sufficient interest to confer interest-injury standing. Interest-injury standing requires "an interest adversely affected by the conduct complained of." Trustees, 736 P.2d at 327. As we noted in Trustees: Such an interest may be economic, or it may be intangible, such as an aesthetic or environmental interest. The degree of injury to the interest need not be great; "[t]he basic idea . is that an identifiable trifle is enough for standing to fight out a matter of principle; the trifle is the basis for standing and the principle supplies the motivation." Id. (citations omitted). Enserch alleges that the enforcement of the preference law caused it economic injury of $1,000,000. Because Enserch alleges injury from the state's enforcement of an unconstitutional law, we conclude that En-serch satisfies the basic requirement of adversity for standing in our state courts. We fail to see a valid justification for denying Enserch standing to challenge the preference law simply because the law's alleged constitutional infirmity involves discrimination between Alaska employees. VI. EQUAL PROTECTION The state argues that the superior court erred in entering summary judgment because (1) the evidence presents genuine issues of material fact, and (2) as a matter of law, the regional preference law does not violate the equal protection clause. Enserch accepted for purposes of its summary judgment motion the defendants' statement of facts. The superior court concluded that the development of a factual record with respect to the equal protection claim was unnecessary insofar as the analysis of such claim was essentially legal rather than factual in nature. The state and NANA have failed to present in their arguments on appeal any disputed issues of material fact which preclude summary judgment. We conclude that the record before us provides ample evidence of the legislature's justifications for adopting the regional preference law as well as the economic and sociological data supporting the Commissioner's findings as to the conditions in the Borough. In addition, the State and En-serch have supplemented the record on appeal with subsequent DOL preference determinations and reports concerning the economic effects of non-residents working in Alaska. We conclude that the superior court did not err in finding that no genuine issues of material fact were in dispute and that an evidentiary hearing was not necessary in order to resolve the equal protection claim. Article I, section 1 of the Alaska Constitution provides in part that "all persons are equal and entitled to equal rights, opportunities, and protection under the law." We have interpreted the language of article I, section 1 to require analysis using a sliding scale approach instead of the tiered approach of federal equal protection analysis. State v. Erickson, 574 P.2d 1, 12 (Alaska 1978). We refined this approach in State v. Ostrosky, 667 P.2d 1184, 1192-93 (Alaska 1983) and Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984). In applying the sliding scale analysis, we have noted on a number of occasions that our state constitution often provides greater protection to individual rights than does the U.S. Constitution. Under Brown, we first determine the importance of the individual interest impaired by the challenged enactment. We then examine the importance of the state interest underlying the enactment, that is, the purpose of the enactment. Depending upon the importance of the individual interest, the equal protection clause requires that the state's interest fall somewhere on a continuum from mere legitimacy to a compelling interest. Finally, we examine the nexus between the state interest and the state's means of furthering that interest. Again depending upon the importance of the individual interest, the equal protection clause requires that the nexus fall somewhere on a continuum from substan tial relationship to least restrictive means. 687 P.2d at 269-70. The equal protection clause thus requires that all enactments be substantially related to a legitimate state interest. Some enactments are held to higher standards, and may even need to be the least restrictive means of achieving a compelling state interest. We first examine the nature of the interest impaired by the regional preference law. Enserch argues that the right to seek and obtain gainful employment in one's craft is a very important one. The Borough responds that, while the general "right to work" may be important, the right to work on a public job in a particular craft in a particular location is much less critical. Similarly, the state argues that we should consider the degree to which a law impairs the right at issue before assigning the right a weight. See Brown, 687 P.2d at 271 (impairments of the right to travel). Because the preference applies to only 50 percent of certain craft positions on a public works project in a particular area, the State argues for the application of a low level of scrutiny. Our cases have acknowledged the importance of the opportunity to work. For purposes of the federal privileges and immunities clause, the right to pursue a living in a particular line of work is a fundamental right. Sheley v. Alaska Bar Association, 620 P.2d 640, 643 (Alaska 1980). As we observed in Robison v. Francis, 713 P.2d 259, 265 (Alaska 1986), "employment in the construction industry must be considered a fundamental right entitled to the protection of the privileges and immunities clause." While the right to earn a living is not a fundamental right under the federal equal protection clause, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), we have noted that the right to engage in an economic endeavor within a particular industry is an "important" right for state equal protection purposes. Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980). At issue in Apokedak was whether the Limited Entry Act restricting commercial fishing in Alaskan waters was consistent with the equal protection clause of the Alaska Constitution. The Limited Entry Act barred commercial fishing in Alaska fisheries without an entry permit. Entry permits only could be obtained from the state if the applicant held a gear license before January 1, 1973. In Apokedak, as here, the right in question was the right to work in a particular industry. The state argues that the regional preference law is entitled to greater deference because it applies only to certain crafts in state construction projects in certain areas. However, that the local hire law is limited to public works construction projects does not significantly reduce its impact since "public works account for the majority of commercial construction activity in Alaska." By restricting the number of public works construction jobs available to non-zone residents, the regional preference law will impose significant limitations on construction workers' overall employment opportunities. The unemployed electrician from Bethel and the unemployed heavy equipment operator from Dillingham seeking a job on the Enserch project will find little solace in the fact that other occupations or private jobs are not covered by the preference. We acknowledge that the resident preference applies to at least fifty percent of the positions available in a particular craft. Thus, we are not necessarily confronted with a total deprivation of employment opportunities for nonresidents of a zone. However, we also were not faced with a total deprivation of employment in Apokedak where we announced that the right to engage in economic endeavor is an important one. In Apokedak, we noted that while those without gear licenses "are deprived of some opportunities of changing their status in the fishing industry . they may secure an entry permit through transfer, purchase or inheritance." 606 P.2d at 1266. Therefore, that the restriction on employment opportunities may not be total does not diminish the importance of the right asserted. We conclude that the right affected by the regional preference law is an important one. Therefore, we will closely scrutinize the law. Patrick v. Lynden Trans., Inc., 765 P.2d 1375, 1379 (Alaska 1988). Close scrutiny of enactments impairing the important right to engage in economic endeavor requires that the state's interest underlying the enactment by not only legitimate, but important, and that the nexus between the enactment and the important interest it serves be close. We next turn to an examination of the state's interest in adopting the regional preference law. The State, NANA, and the Borough argue that the preference in AS 36.10.160 has a number of important goals. We agree. The legislative findings explain that the act was enacted to "reduce unemployment among residents of the state, remedy social harms resulting from chronic unemployment, and assist economically disadvantaged residents." Ch. 33, § 1, SLA 1986. Thus, the statute represents an attempt to preserve the social structure in an economically distressed zone by providing employment opportunities for qualified workers on state-funded construction projects there. While these goals are important, they conceal the underlying objective of economically assisting one class over another. We have held that this objective is illegitimate. In Lynden Transport, Inc. v. State, 532 P.2d 700, 710 (Alaska 1975), we ruled that "discrimination between residents and nonresidents based solely on the object of assisting the one class over the other economically cannot be upheld under . the . equal protection clause[ ]." While that case involved discrimination between state residents and nonresidents, the principle is equally applicable to discrimination among state residents. We conclude that the disparate treatment of unemployed workers in one region in order to confer an economic benefit on similarly-situated workers in another region is not a legitimate legislative goal. This conclusion essentially ends our inquiry. That the legislature also hoped to preserve the social structure of economically distressed areas cannot be viewed as a purpose separate from that of aiding the residents of such areas. It would not make sense to conclude that a statute may not discriminate between residents of two areas in order to aid the residents of the more disadvantaged area, but that such a statute could discriminate between residents of two areas in order to aid the communities in the more disadvantaged area. The communities are merely the collective sum of the residents. Our constitution guarantees the rights of "persons," not communities viewed separately from the people who constitute the communities. Even if we were to find that community aid is an important objective separate from the goal of benefitting the residents of a given area, we would hold the statute unconstitutional because the fit between that objective and the preference law is not close. The law is seriously over- and un-definclusive because it does not prioritize relief for those areas most affected by nonresident employment. Residents of less distressed zones may be unfairly advantaged compared to residents of more distressed zones. This means that nonresi dent workers will be unfairly disadvantaged in less distressed zones. Indeed, while the Commissioner selected the Borough as the first place to invoke the preference law, his own report showed that the Borough had the lowest percentage of nonresident workers in the twenty-nine zones surveyed. Because the economic criteria for designating an economically distressed zone are very broad given Alaska's historically high unemployment rate compared to the rest of the nation, the Commissioner at any time could designate many regions within the state as distressed zones. The regional preference law thus has a potential for pervasive over- and underinclusiveness. Given the law's lack of prioritization together with its broad eligibility require-' ments, we would hold that the law's classification scheme is not closely related to its purpose. For the above reasons, we affirm the decision of the superior court that AS 36.-10.160 violates the Alaska Constitution.- VII. DAMAGES The state and NANA argue that the superior court erred in concluding that En-serch did not waive its right to seek damages from the state for its enforcement of the regional preference law. We reverse the superior court's determination without deciding the waiver issue because Enserch does not have the right to seek damages for the enforcement of an unconstitutional law. In the sequel to Robison, we denied Francis's claim for nearly $31,000 in wages he would have earned but for the state's enforcement of AS 36.10.160's predecessor. Robison v. Francis, 777 P.2d 202 (Alaska 1989) ("Robison II"). In Robison II, we held that "the state may not be held liable for damages arising from the passage of unconstitutional legislation." 777 P.2d at 204. We explained the sound reason for this holding in Vest v. Schafer, 757 P.2d 588 (Alaska 1988): For a court to hold a state liable for unconstitutional legislation would introduce a profound conservative tilt into the lawmaking process. Legislators would become reluctant to. legislate, knowing that money damages were at stake if a court ultimately disagrees with their own appraisal of the constitutionality of a bill. 757 P.2d at 595. For these reasons, we hold that neither Enserch, Opel, nor La-Rose is entitled to seek damages for the state's enforcement of AS 36.10.160. Therefore, we need not consider whether the superior court was correct in concluding that Enserch did not waive its right to seek such damages from the state. VIII. CONCLUSION We affirm the superior court's ruling that Enserch did not waive its right to challenge the constitutionality of the regional preference law, and that Enserch, Opel, and LaRose have standing. We conclude that the court did not abuse its discretion in allowing the individual plaintiffs to intervene. We hold that AS 36.10.160 and the implementing regulations and orders contravene the equal protection provision of the state constitution. Finally, we conclude that Enserch has no right to seek damages for the state's enforcement of the unconstitutional law. The judgment of the superior court is AFFIRMED in part and REVERSED in part. MATTHEWS, C.J., joins, and BURKE, J., joins in part. BURKE, J., concurs. COMPTON, J., dissents. RABINOWITZ, J., dissents joined by COMPTON, J. . AS 36.10.150-.180. AS 36.10.180 sets forth the projects subject to preference: (a) The preferences established in AS 36.10.-150-36.10.175 apply to work performed (1) under a contract for construction, repair, preliminary surveys, engineering studies, consulting, maintenance work, or any other retention of services necessary to complete a given project that is let by the state or an agency of the state, a department, office, state board, commission, public corporation, or other organizational unit of or created under the executive, legislative or judicial branch of state government, including the University of Alaska and the Alaska Railroad Corporation, or by a political subdivision of the state including a regional school -board with respect to an educational facility under AS 14.11.020: (2) on a public works project under a grant to a municipality under AS 37.05.315; (3) on a public works project under grant to be named recipient under AS 37.05.316; (4) on a public works project under a grant to an unincorporated community under AS 37.05.317; and (5) on any other public works project or construction project that is funded in whole or in part by state money. . AS 36.10.160(a) provides: Immediately following a determination by the commissioner that an economically distressed zone exists, and for the next two fiscal years after the determination, qualified residents of the zone who are eligible under AS 36.10.140 shall be given preference in hiring for at least 50 percent of employment on each project under AS 36.10.180 that is wholly or partially sited within the zone. The preference applies on a craft-by-craft or occupational basis. . AS 36.10.160(b). AS 36.10.160(b) provides: The commissioner shall determine that an economically distressed zone exists if the commissioner finds that (1) the per capita income of residents of the zone is less than 90 percent of the per capita income of the United States as a whole, or the unemployment rate in the zone exceeds the national rate of unemployment by at least five percentage points; (2) the lack of employment opportunities in the zone has substantially contributed to serious social or economic problems in the zone; and (3) employment of workers who are not residents is a peculiar source of unemployment of residents of the zone. The employment of nonresidents is a "peculiar source of unemployment" in an area when "more than 10 percent of the residents of an area who are trained or experienced in a craft or occupation are unemployed and more than 10 percent of the total number of workers employed in that area in that craft or occupation are not residents of the area." 8 AAC 30.069. . The Red Dog Mine is a private venture to extract zinc and lead from the DeLong Mountains. A transportation corridor, including a road and a harbor facility, had to be developed to extract and transport the ore. Recognizing both the lack of private capital and the project's anticipated economic benefit to the region, the Alaska Legislature appropriated 1132,000,000 in loans and $12,000,000 in cash to enable the Alaska Industrial Development and Export Authority (AIDA) to secure bonds to finance this transportation corridor. Ch. 67, SLA 1985. . In support of this determination, the Commissioner found that: (1) the Borough had a 12-month unemployment rate of 15.7 percent compared to the national 12-month average of 6.9 percent; (2) lack of employment in the Borough had substantially contributed to its economic and social problems; and (3) more than 10 percent of the qualified or trained resident workers in 12 different crafts were unemployed while more than 10 percent of those employed in the Borough in the 12 crafts were not Borough residents. . The Commissioner's findings covered the following crafts or occupations: Airline Pilots and Navigators Carpenters Construction Laborers Construction Managers Electricians and Power Transmission Installers Equipment Operators Plumbers, Pipefitters and Steamfitters Receptionists Survey Crews Truck Drivers Vehicle and Mobile Equipment Mechanics and Repairers Welders and Cutters Ensereh only was required to hire qualified local residents. AS 36.10.070(b). If qualified local residents are not available, DOL may grant a waiver to allow nonresidents to be hired. Id. In this case, DOL processed 14 waiver requests covering 47 employees. DOL granted waivers for 43 employees and denied four. .Ensereh did not appeal the privileges and immunities ruling. . Civil Rule 24(b) provides: (b) Permissive Intervention. Upon timely application anyone may be permitted a intervene in an action when an applicant's claim or defense and the main action have a question of law or fact in common_ In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. . Generally, a litigant lacks standing to assert the constitutional rights of another. Falcon v. Alaska Pub. Officers Comm'n, 570 P.2d 469, 475 n. 20 (Alaska 1977); see Wagstaff v. Superior Court, 535 P.2d 1220, 1225 (Alaska 1975). A corporation can only assert its own rights and not the rights of its employees. Virginian Ry. v. System Fed'n No. 40, 300 U.S. 515, 558, 57 S.Ct. 592, 604, 81 L.Ed. 789 (1937). Exceptions to the general rule exist. For example, we have allowed third party standing where a special relationship exists between the plaintiff and the third party. See, e.g., Bonjour v. Bonjour, 592 P.2d 1233, 1241 n. 15 (Alaska 1979) (parent has standing to assert child's constitutional rights). Moreover, standing may be conferred on a third party when the interested party's attempt to vindicate his rights would forfeit these very rights. Falcon, 570 P.2d at 475. The United States Supreme Court has allowed a third party to assert an interested party's equal protection claims when the interested party is unable to assert his own rights. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). . Instead, the state and NANA rely on the United States Supreme Court's opinion in United Building and Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984), for the proposition that an evidentiary hearing or trial should be held before Enserch's equal protection claim can be adjudicated. We note that the procedural posture of the Camden case was very different from this case, and therefore find it unpersuasive as support for a remand in this case. In Camden, the Supreme Court concluded that it could not evaluate the plaintiffs federal privileges and immunities challenge to the Camden municipal ordinance on the record before it since the case had been decided by the New Jersey Supreme Court on "direct appeal after the brief administrative proceedings that led to approval of the ordinance by the State Treasurer." 465 U.S. at 223. Thus, the U.S. Supreme Court concluded that "[i]t would not be appropriate for the Court either to make factual determinations as an initial matter or to take judicial notice of Camden's decay." Id. . See, e.g., Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1377 (Alaska 1988); Schafer v. Vest, 680 P.2d 1169, 1172 (Alaska 1984) (Burke, C.J., concurring); Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255, 1267 (Alaska 1980). . In stating this minimum level of scrutiny of the nexus between the state's interest in the enactment and the state's chosen means, we have sometimes suggested that the classification must be "reasonable, not arbitrary" and rest "upon some ground of difference having a fair and substantial relation to the object of the legislation." Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1377 (Alaska 1988); Herrick's Aero-Auto-Aqua Repair Service v. State, Dept. of Transp., 754 P.2d 1111, 1114 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983). This language comes originally from F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561-62, 64 L.Ed. 989 (1920) and was subsequently quoted in our decisions in State v. Wylie, 516 P.2d 142, 145 (Alaska 1973) and Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976). The requirement that the classification be reasonable and not arbitrary predates our Erickson sliding scale analysis. Since it is a requirement imposed upon the state's chosen means rather than the state's interest or the nexus between the state's interest and the means, the imposition of this requirement is a fourth level of equal protection analysis not required by our opinion in Brown. This requirement need not be part of our equal protection analysis because due process already requires that enactments be reasonable and not arbitrary. Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974); Mobile Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 101 (Alaska 1974). If an enactment requiring only the minimum level of scrutiny could ever be substantially related to a legitimate state interest and still be unreasonable or arbitrary, we would find that it denied due process, not equal protection. . The local preference law here like the state preference law at issue in Robison is subject to the federal privileges and immunities clause. United Bldg. and Constr. Trades Council v. Mayor and Council of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (local hire preference law for city public works projects is subject to scrutiny under the privileges and immunities clause even though it discriminated against state residents as well). The superior court ruled that the plaintiffs in this action being Alaska residents and an Alaska corporation are not protected in this case by the federal privileges and immunities clause. Enserch did not appeal this ruling. . Robison, 713 P.2d at 262. Even in good economic times, public construction "accounts for approximately sixty to seventy percent or more of the total construction dollar outlay within the state." Id. . See Robison, 713 P.2d 259 (Alaska 1986) (all positions on state public works projects closed to non-resident workers); Gilman v. Martin, 662 P.2d 120, 125 (Alaska 1983) (non-borough residents prohibited from participating in borough land lottery); Sheley v. State Bar Ass'n, 620 P.2d 640 (Alaska 1980) (30-day residency requirement for bar admission). . The impact of the 50 percent preference is compounded by the cumulative effect of other preferences which also might apply in a particular zone. For example, the preference for economically disadvantaged minority residents in AS 36.10.170 provides for a preference of the greater of 25 percent or a percentage representative of the civilian minority residents in a zone. Consequently, in some zones the economically disadvantaged minority preference is as high as 80 percent. See Resident Hire Preference Determination, June 20, 1988 at 58, 62. The law is not saved by the Commissioner's power to waive a preference when eligible zone residents are unavailable. AS 36.10.070. First, there is no guarantee that the Commissioner will grant a waiver for a particular position. Moreover, in situations where qualified residents are available, these waivers are of no value to non-resident unemployed workers. .In Apokedak, we noted that "[biased on the nature of the right, a greater or lesser burden is placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective." 606 P.2d at 1264. This was a correct statement of the rule we announced in Erickson, 574 P.2d at 12. However, this formulation led us to require that an enactment impairing an important right bear only a fair and substantial relationship to the state's interest in the enactment. Apokedak, 606 P.2d at 1266. This result is at odds with our holding in Brown, 687 P.2d at 269-70, that the nexus between an enactment and the state's interest must be more than merely substantial when more important rights are impaired. We now state the proper inquiry for enactments impairing rights as important as the right to engage in economic endeavor. We do not question the fundamental nature of our state equal protection analysis: it remains a single, flexible test and not a rigid, tiered approach like that employed in interpreting the equal protection clause of the U.S. Constitution. Enactments impairing rights more or less important than the right to engage in economic endeavor shall receive more or less scrutiny when challenged under the equal protection clause of the Alaska Constitution. . The superior court first looked to AS 36.10.-006 to discern the purpose of the statute. However, this statement of purpose was adopted as part of AS 36.10.010, the resident hire law overturned in Robison. Thus, this provision is of little value in determining the purposes of the regional preference law. . Similarly, we have observed that excluding "non-residents from public construction jobs so that more jobs will be available to Alaskans . is not a permissible justification for discrimination under the privileges and immunities clause." Robison v. Francis, 713 P.2d 259, 267 (Alaska 1986). Although the Alaska Constitution does not have a privileges and immunities clause, it is our view that the equal rights, opportunities and protection clause of art. I, § 1 affords at least as much protection intrastate to fundamental rights that the privileges and immunities clause affords interstate. See Lynden Trans., Inc. v. State, 532 P.2d 700, 710 (Alaska 1975); Robison, 713 P.2d at 264 & n. 5, 271. The present statute discriminates against out-of-state residents as well as Alaska residents who do not reside in a given zone. It would be anomalous to conclude that out-of-state residents are afforded a higher degree of constitutional protection than in-state residents who are also discriminated against. .For example, article I, section 1 provides: Inherent rights. This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people of the state. . Under the regional preference law, a region may be declared economically distressed if the unemployment rate within that region exceeds the U.S. unemployment rate by five percentage points. AS 36.10.160(b)(1). State studies indicated that the entire State of Alaska could have been designated an economically distressed zone in 1985. See also Robison, 713 P.2d at 265 n. 6 (setting forth unemployment rates in the U.S. and Alaska from 1970-1983). . Enserch argued that there was not a sufficiently close means-ends fit on the grounds that the law will not effectively achieve the legislature's purpose and it may have undesirable economic consequences. These arguments, which sound in substantive due process, are unrelated to the question whether the preferences are sufficiently tailored to the purposes of the law. .Enserch also is not entitled to recover damages for breach of contract since it promised to "comply with all laws and regulations regarding the hiring of Alaska residents now in effect or that may subsequently take effect." While this clause does not amount to a waiver of Enserch's right to challenge the constitutionality of the regional preference law, the clause is a promise to comply with the law and its implementing regulations. By agreeing to comply with the Kotzebue hiring preference, Enserch waived its right to seek contract damages for increased costs due to its imposition.

10395481

John R. WALSH, Appellant, v. STATE of Alaska, Appellee

Walsh v. State

1988-07-22

No. A-2278

124

128

758 P.2d 124

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

John R. WALSH, Appellant, v. STATE of Alaska, Appellee.

John R. WALSH, Appellant, v. STATE of Alaska, Appellee. No. A-2278. Court of Appeals of Alaska. July 22, 1988. Marcia E. Holland, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Gayle L. Garrigues, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2234

13415

OPINION SINGLETON, Judge. John R. Walsh pled no contest to charges of theft in the fourth degree, AS 11.46.-150(a) and disorderly conduct, AS 11.61.-110(a)(5). Magistrate Earl L. Slater took Walsh's plea and sentenced him to twenty days with eighteen days suspended for theft, and thirty days with twenty days suspended and a $100 fine for disorderly conduct. Four months later Walsh, through defense counsel, moved to withdraw his plea. District Court Judge Christopher E. Zimmerman denied Walsh's motion to withdraw his plea. Walsh appeals the denial of his motion. He claims that he should have been permitted to withdraw his plea because, at the time Walsh entered his plea, Magistrate Slater did not explain the benefits of counsel to him, did not make sure that he understood the nature of the charges pending against him, and did not individually apprise him of his right to a jury trial. We conclude that Magistrate Slater failed to ensure that Walsh understood the elements of the charges to which he pled. We therefore reverse his conviction and set aside his plea. FACTS AND PROCEEDINGS The criminal complaint alleges that Walsh entered a restaurant on June 4, 1986, and ordered a steak sandwich from a waitress, Kelley J. Borkowski. Borkowski stated that she served Walsh a sandwich, which he consumed. Thereafter, she reported, Walsh walked out of the restaurant, leaving the meal check of $8.50 lying on the table, without making any effort to pay for it. Borkowski followed Walsh onto the street and demanded that he pay. Walsh allegedly shoved Borkowski with his hands and attempted to flee, but was captured by bystanders. As a result, Walsh was charged with theft in the fourth degree, apparently on the theory that he had stolen services from the restaurant. He was also charged with disorderly conduct for "fighting" with Borkowski. Walsh was arraigned on June 5, 1986. Prior to his arraignment, Walsh was part of a group which viewed a video tape of Magistrate Slater reading the rights relevant to the proceedings. On the video tape, Magistrate Slater advised the group of their various rights and explained the various pleas available. Prior to Walsh's arraignment, two other individuals appeared on felony charges and several individuals appeared on misdemeanor charges. The magistrate briefly discussed each of these individuals' rights, including the right to an attorney and the right to a trial. He then proceeded to arraign Walsh, informing him that he was charged with theft in the fourth degree and disorderly conduct. In response to a question, Walsh informed the magistrate that he had received copies of the charges, that he understood them, and that he did not wish to have anything explained to him. The magistrate informed Walsh that both charges were class B misdemeanors and that each carried the maximum penalty of ninety days in jail or $1,000 or both. Walsh indicated that he understood the penalties, that he did not wish to speak to an attorney, and that he was prepared to enter a plea of no contest. The magistrate accepted the plea and the district attorney indicated the factual basis of the plea by reading from the complaint the facts previously set out in this opinion. The magistrate then asked Walsh if he had anything to say before receiving his sentence. Walsh responded: Yes, I just cashed my check, there was almost $2,000 and I was visiting some friends in the Pioneer Hotel and . I know I had my wallet there, and I had just left there and went over to eat. And when I went to pay for it, I didn't have my wallet and all I could think of was trying to find my money that I had misplaced . I didn't have any intention of doing this when I went into the Black Angus, and I tried to talk to the waitress there, and . she didn't want to . she didn't trust me to go get the money..... I would have paid for it if I had my wallet. Walsh indicated that he had been drinking at the time and was pretty drunk, but verified that he "knew what [he] was doing." The magistrate then inquired about the check Walsh referred to and learned that it was an income tax refund in the amount of $1,991.66. The magistrate then indicated that he was prepared to go on with sentencing and sentenced Walsh as indicated at the outset of this opinion. DISCUSSION Walsh was charged with theft in the fourth degree, apparently on the theory that he committed theft of services. The complaint does not, however, reference AS 11.46.200, which provides in pertinent part: (a) A person commits theft of services if (1) the person obtains services, known by that person to be available only for compensation, by deception . to avoid payment for the services . (b) absconding without paying for hotel, restaurant, or other services for which compensation is customarily paid immediately upon the receiving of them is prima facie evidence that the services were obtained by deception. Additionally, Walsh was charged with disorderly conduct. In context, disorderly conduct is committed when, "in a public or private place, the person challenges another to fight or engages in fighting other than in self-defense." AS 11.61.110(a)(5). Walsh does not have an automatic right to withdraw his plea. When the court has already imposed a sentence, the defendant must establish that withdrawal is necessary to correct manifest injustice. Alaska R.Crim.P. 11(h)(1). This burden is met whenever it is demonstrated that the plea was entered without knowledge of the charge. Alaska R.Crim.P. 11(h)(1)(ii)(cc). If the defendant establishes that there has been a violation of Rule 11, the state must then bear the burden of showing, by a preponderance of the evidence, that the court substantially complied with the rule. Bratcher v. State, 681 P.2d 358, 361 (Alaska App.1984); Fulton v. State, 630 P.2d 1004, 1007 (Alaska App.1981). Alaska Rule of Criminal Procedure 11(c) provides, in relevant part: 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.... Walsh argues that he did not enter a knowing and voluntary plea because he did not understand the nature of the charges against him. In Bratcher, the defendant pled no contest to a charge of receiving stolen property,and was sentenced. 681 P.2d at 360. Bratcher's statements to the court at allocution strongly implied that he did not understand the elements of the charge to which he had pled. Id. at 361-63. The trial court failed to inquire further into Bratcher's understanding of the offense. Id. We, therefore, set aside Bratcher's conviction and permitted him to withdraw his plea. Similarly, during Walsh's allocution, he explained to the court that he had just cashed an income tax check worth approximately $2,000. He had been visiting friends at the Pioneer Hotel prior to eating at the Black Angus Restaurant. When he realized that he did not have his wallet, he tried to get back to the hotel to get it. He said he would have paid for the sandwich had he been permitted to do so. Under the theory of the prosecution, Walsh had to knowingly obtain his meal by deception. In other words, the state was obligated to prove that at the time Walsh ordered the steak sandwich, he knew that the restaurant would not be compensated. While it is true that his leaving without paying established a prima facie case, it was by no means conclusive. A jury could have credited Walsh's explanation. Under the circumstances, the magistrate had a duty to ensure that Walsh understood the offense and understood that he could not be found guilty if the jury believed his explanation. It is certainly true that a jury would not be obligated to believe his explanation and that a person has a right to plea no contest even though he claims innocence. Miller v. State, 617 P.2d 516, 519 (Alaska 1980). Nevertheless, when a defendant, particularly one who is not represented by counsel, offers an explanation at allocution consistent with innocence, the court is obligated to ascertain that the defendant understands the elements of the offense but wishes to plea no contest, despite the knowledge that if a jury accepted the explanation, the defendant could be exonerated. Bratcher, 681 P.2d at 361 n. 3. Accordingly, we conclude that Magistrate Slater's failure to address Walsh personally to determine his understanding of the nature of the offense, in light of his claim of innocence,' requires that Walsh be permitted to withdraw his plea of nolo conten-dere and reinstate his original plea of not guilty. The conviction is REVERSED and this case is REMANDED. . Alaska Statute 11.46.150 provides: (a) A person commits the crime of theft in the fourth degree if the person commits theft as defined in AS 11.46.100 and the value of the property or services is less than $50. (b) Theft in the fourth degree is a class B misdemeanor. . Alaska Statute 11.46.100 provides in relevant part: A person commits theft if.... (5) the person commits theft of services under AS 11.46.200. . Alaska Statute 11.81.900(b)(51) provides: "[S]ervices" includes labor, professional services, transportation, telephone or other communications service, entertainment, the supplying of food, lodging, or other accommodations in hotels, restaurants, or elsewhere, admission to exhibitions, and the supplying of equipment for use. . Alaska Statute 11.81.900(b)(14)(A), (B), (E) provides: "[Djeception" means to knowingly (A) create or confirm another's false impression which the defendant does not believe to be true, including false impressions as to law or value and false impressions as to intention or other state of mind; (B) fail to correct another's false impression which the defendant previously has created or confirmed; (E) promise performance which the defendant does not intend to perform or knows will not be performed. . Alaska Evidence Rule 303 provides, in relevant part: (a) Effect. (1) Presumptions Directed Against the Accused. In all criminal cases when not otherwise provided for by statute, by these rules or by judicial decision, a presumption directed against the accused imposes no burden of going forward with evidence to rebut or meet the presumption and does not shift to the accused the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. However, if the accused fails to offer evidence to rebut or meet the presumption, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury. (b) Prima Facie Evidence. A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this rule. . "Fight" and "fighting" are not defined in the statutes. We must, therefore, look to common usage to determine their meaning. AS 01.10.-040. Generally, we look to a dictionary to determine common usage. Walker v. State, 742 P.2d 790, 791 (Alaska App.1987). The word "fight" means to struggle against a person in physical combat. Oxford American Dictionary, 240 (1980). . The right to self-defense is defined in AS 11.-81.330(a), which provides, in relevant part: A person may use non-deadly force upon another when and to the extent the person reasonably believes it is necessary for self defense against what the person reasonably believes to be the use of unlawful force by the other..,. . Walsh's explanation was inconsistent with the criminal intent necessary to his conviction of theft of services. AS 11.46.200. He did not directly rebut the claim that he had engaged in fighting with Borkowski. In our view, however, the two charges are so intertwined that Walsh should be permitted to withdraw his plea as to both charges. Walsh's guilt of disorderly conduct turns in part on whether he was engaged in "self-defense" in connection with "fighting" with Borkowski. It appears that Borkowski attempted to restrain Walsh on the sidewalk outside the restaurant. Arguably, Borkowski was authorized to make a citizen's arrest of Walsh for failing to pay for the steak sandwich. AS 11.81.-390. The revised code does not directly preclude a person from using force to resist a private person's arrest. See AS 11.81.400 (precluding use of force to resist an arrest by a police officer). On the other hand, if Walsh knew that Borkowski was attempting a citizen's arrest and was authorized to do so, she would not be using "unlawful" force on him, eliminating his right to resist her. AS 11.81.330(a). Since Walsh's defense turns on what he reasonably believed, his right to self-defense, and, therefore, his guilt or innocence of disorderly conduct is inextricably intertwined with his defense to the charge of theft. Therefore, Walsh should be permitted to withdraw his plea as to both charges.

10399260

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

Clifton v. State

1988-07-08

No. A-1726

1279

1286

758 P.2d 1279

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

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

George M. CLIFTON, Appellant, v. STATE of Alaska, Appellee. No. A-1726. Court of Appeals of Alaska. July 8, 1988. Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions, and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and SCHULZ, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3922

24447

OPINION COATS, Judge. George M. Clifton was convicted, following a jury trial, of one count of sexual abuse of a minor in the first degree, and two counts of sexual abuse of a minor in the second degree. AS 11.41.434(a)(2)(B); AS 11.41.436(a)(3)(B). Judge James K. Singleton sentenced Clifton, a first felony offender, to a composite sentence of twelve years with two years suspended. Clifton appeals his conviction and sentence to this court. FACTS On March 27, 1985, J.B.M., an eleven-year-old boy, was brought to the nurse's office and questioned by social worker Dorothy Lee because of an allegation that he had engaged a younger child in sex play. During the interview, J.B.M. stated that his stepfather, George Clifton, had sexually abused him. J.B.M. stated that the abuse had been occurring about twice a week since November 1984. According to J.B.M., after his mother and sister had left in the morning, Clifton would have J.B.M. come into Clifton's bedroom. Clifton would have J.B.M. lie on his bed, and Clifton would ask him to pull his pants down. Clifton would pull out his own penis, shake it, and then rub, kiss, and lick J.B.M.'s penis. J.B.M. would also put his penis in Clifton's mouth. J.B.M. stated that this had happened the week prior to the interview, and that he had been late to school twice because of Clifton's actions. J.B.M. said that Clifton warned him not to tell anyone of the abuse or else J.B.M. would get in trouble. Following the interview with J.B.M., Dorothy Lee talked to Clifton's stepdaughter, C.M., age thirteen. C.M. also stated that Clifton had sexually abused her. She claimed that Clifton had come into her bedroom on four or five different occasions and touched her sexually. C.M. repeated her claims in interviews conducted later that day by Dorothy Lee and an agent of the Air Force Office of Special Investigations. J.B.M.,' however, denied acknowledging his report. On April 1 or 2, 1985, J.B.M. retracted his allegations of sexual abuse completely. He claimed that he made up the accusation because the social worker had scared him and made him believe that he might get into trouble. C.M. also retracted the bulk of her accusation. C.M. stated that Clifton had only come into her bedroom and touched her sexually one time. She suggested that Clifton may have been sleepwalking at the time. Clifton apparently has some history of sleepwalking. Clifton was ultimately indicted for two counts of sexual abuse involving J.B.M. and one count of sexual abuse involving C.M. Clifton stood trial on these charges in May 1986. At trial, J.B.M. and C.M. adhered to their more recent accounts denying their earlier charges of sexual abuse. Both children admitted, however, that they had made statements to Dorothy Lee and Air Force investigators which accused Clifton of sexual abuse. The state argued at trial that J.B.M.'s and C.M.'s original statements of sexual abuse were truthful. Clifton testified at trial and denied abusing J.B.M. at any time. Clifton stated that he did wake up in C.M.'s bedroom one night, but that he was not aware of having touched C.M. He indicated that this was a period of time when he had been drinking extensively, and indicated that he must either have been sleepwalking or in an alcohol-induced blackout. The jury found Clifton guilty on all three counts. SUFFICIENCY OF EVIDENCE Clifton first argues that the evidence on Counts I and II, which involved sexual abuse of J.B.M., was insufficient to support a conviction. Clifton essentially argues that his case is similar to Brower v. State, 728 P.2d 645, 647-48 (Alaska App.1986), in which we held that an uncorroborated prior inconsistent statement was insufficient to establish the sexual assault charges in that case. The question at issue is whether J.B.M.'s prior inconsistent statement was sufficiently corroborated to support Clifton's convictions on the two charges involving sexual abuse of J.B.M. In Bodine v. State, 737 P.2d 1072 (Alaska App.1987), we discussed the kind of corroboration necessary to support a prior inconsistent statement. The rule governing corroboration, we said, "is a flexible one, which is grounded in common sense: corroborating evidence is sufficient where it induces a rational belief in the truthfulness of a witness' testimony." Id. at 1075. In Bodine, we found that the alleged victim's prior inconsistent statement was sufficiently corroborated to support a conviction. In addition, we specifically rejected the contention that the corroborating evidence had to relate directly and specifically to the sexual acts charged in the indictment. Instead, we looked at all of the evidence in the case to determine whether reasonable jurors could conclude beyond a reasonable doubt that the defendant was guilty of the crimes charged. In reviewing the record in this case, we conclude that J.B.M.'s prior statements were sufficiently corroborated to permit the jury to convict Clifton. To a certain degree, the original statements of J.B.M. and C.M. corroborated each other. The state presented evidence that Clifton first molested C.M., but that C.M. told her stepfather to stop his activities. A few months later, Clifton started abusing J.B.M. The fact that both children reported the sexual abuse and then later withdrew the accusations is significant. At trial, the state presented expert testimony which tended to explain why children in sexual abuse cases would make charges and later withdraw those charges. The expert testified that it is not uncommon for a sexual abuse victim to recant his or her accusation against a parent, or stepparent, when the nonoffend-ing parent supports the parent charged with the sexual abuse, and appears not to believe the child's accusations. The state presented testimony which tended to illustrate the pressures on J.B.M. to recant, including J.B.M.'s statement that he did not want to be responsible for putting his father in jail. Clifton's reaction when he was confronted by Air Force Investigator Russell Oesch with the fact that J.B.M. had accused him of sexual molestation suggests consciousness of guilt and corroborates J.B.M.'s original statement charging Clifton with sexual abuse. Oesch testified that Clifton "just kind of hung his head and said that he didn't remember doing any of these." Oesch also testified that Clifton never denied that he had abused J.B.M. When Oesch pointed out the implausibility of Clifton's being unable to remember whether he had engaged in oral sex acts with his stepson, Clifton responded by saying he was afraid of ruining his marriage, career, and family. Thus, when the children's statements, and the evidence in this case are looked at in context, we conclude that the evidence was sufficient for a reasonable jury to find Clifton guilty of the charges beyond a reasonable doubt. EXTRINSIC EVIDENCE OF PRIOR INCONSISTENT STATEMENTS Clifton next argues that the trial judge erred in admitting evidence of statements which J.B.M. and C.M. made to social worker Lee and Air Force Investigator Oesch. Clifton concedes that it was proper to bring in evidence of J.B.M.'s and C.M.'s prior inconsistent statements. He argues, however, that because J.B.M. and C.M. admitted making the prior inconsistent statements, it was error for the trial court to allow Lee and Oesch to testify to these statements which J.B.M. and C.M. had already admitted making. Clifton did not object to admission of this evidence at trial. We therefore review this issue under a plain error standard. Alaska R.Crim.P. 47(b). We find plain error only when the error is obvious and prejudicial. Moreau v. State, 588 P.2d 275, 280 (Alaska 1978). Alaska Evidence Rule 801(d)(1)(A) allows the admission of prior inconsistent statements as nonhearsay testimony. Clifton points out that, under the evidence rule, prior inconsistent statements are to be excluded unless the witness was given "an opportunity to explain or deny the statement." Clifton argues that once a witness admits having made a prior statement which differs from the witness' trial testimony, additional proof of the prior statement is no longer necessary. There is some authority allowing a trial judge to exclude extrinsic evidence of a prior inconsistent statement when the witness at trial admits making the prior inconsistent statement. See Patterson v. Cushman, 394 P.2d 657, 661 (Alaska 1964). In Bentley v. State, 397 P.2d 976, 978 (Alaska 1965), however, the supreme court held that it was error for the trial court not to allow a criminal defendant to introduce a tape-recording of a prior inconsistent statement made by a key prosecution witness under the particular circumstances of that case. Therefore, whether or not to admit extrinsic evidence of a prior inconsistent statement appears to be a matter committed to the trial court's discretion. In the instant case, J.B.M. and C.M. did not admit making all of the statements to which Lee and Oesch testified. Furthermore, J.B.M.'s and C.M.'s demeanor, and the exact statements which they made, had probative value. It does not appear to us that admission of these statements had undue prejudicial effect. A.R.E. 403. Accordingly, under these circumstances, it seems clear that admitting extrinsic evidence of the statements that J.B.M. and C.M. made to Lee and Oesch did not amount to plain error. EXPERT OPINIONS Clifton next claims that the trial court erred in allowing two expert witnesses to express opinions concerning J.B.M.'s and C.M.'s claims that they had not been abused as they had initially alleged. Again, there was no objection to this testimony at trial. We therefore review the admission of this evidence for plain error. It is generally improper for a witness to testify to the credibility of another witness' testimony. Walker v. State, 674 P.2d 825, 831 (Alaska App.1983). These credibility determinations are particularly dangerous when offered as expert testimony. Rodriquez v. State, 741 P.2d 1200, 1204 (Alaska App.1987). A. Susan Wibker Psychologist Susan Wibker described one of her counseling sessions with C.M., in which C.M. told her that Clifton may have been sleepwalking when he touched C.M. sexually. Wibker described how she sought to show C.M. that, if in fact the abuse was not the result of a volitional act by Clifton, it might happen again. Wibker then said that C.M.'s inconsistency — attributing the abuse to sleepwalking, but believing that Clifton could make a volitional choice not to do it again— "made me really doubt whether or not she thought he was really sleepwalking." Wibker's testimony was made on redirect examination and used to clarify a point which the defense made on cross-examination. [Tr. 525] The remark was made in passing, and merely indicated a specific problem that Wibker had with C.M. in counseling. The remark was neither repeated in argument nor emphasized in any way during the remainder of the trial. Under these circumstances, we do not find plain error. See Moor v. State, 709 P.2d 498, 509 (Alaska App.1985) (statement that ninety-nine percent of all sexual misconduct reports are true was found not to be plain error). B. Lucinda Laird Social worker Lucinda Laird also made a statement during cross-examination by Clifton that "we did not just buy [J.B. M.'s] recant, lock, stock, and barrel the way he and the family did." This response came in on cross-examination by Clifton. Laird was explaining that, at one time in talking with J.B.M., she was attempting to tell J.B.M. that he might still have to testify even though he had recanted his earlier accusations against Clifton. This remark was made in passing and was not emphasized in any way in the case. Moreover, the statement indicated only that the social workers were not sure whether to believe J.B.M.'s statements recanting his earlier accusations. Again, we do not find plain error. CONFIDENTIALITY OF CINA The state commenced a Child in Need of Aid (CINA) action involving C.M. and J.B. M. after learning of the accusations of sexual abuse. In connection with the CINA action, Mrs. Clifton, C.M., and J.B.M. consulted with state social workers, and the children also saw a state-approved psychological counselor. Clifton argues that the trial judge erred in allowing evidence to be admitted at the trial which was originally obtained in connection with the CINA action. At trial, two state social workers testified to statements by Mrs. Clifton, C.M., and J.B.M. made in connection with the CINA action. One of the children's psychological counselors testified to statements of the children and Mrs. Clifton. Clifton did not object to admission of this testimony. Clifton now contends that allowing this testimony violated the policy of confidentiality in CINA proceedings. CINA proceedings operate under statutorily mandated confidentiality. AS 47.10.070 (hearings closed to public); AS 47.10.090(a) (records may not be disclosed without court's permission). As the state points out, however, the policy of confidentiality in CINA proceedings is not absolute. The court has discretion to disclose records in CINA proceedings under AS 47.10.090(a). See also W.M.F. v. Johnstone, 711 P.2d 1187 (Alaska App.1986) (relatives of murder victims may, in the court's discretion, be permitted to attend closed juvenile delinquency proceedings). Because neither Clifton, his wife, J.B.M., nor C.M. objected to admission of this testimony at trial, Judge Singleton had no opportunity to decide whether there was any reason to maintain the confidentiality of this evidence. There certainly were reasons to admit this evidence: Clifton was charged with a serious criminal offense involving J.B.M. and C.M., and the testimony in question was relevant to determining whether the children's original charges of sexual abuse were accurate. Accordingly, we do not find plain error. PSYCHOTHERAPIST PRIVILEGE During direct examination, the prosecutor asked C.M. and J.B.M. about statements they had made and attitudes they had displayed during their counseling sessions with their psychologist, Susan Wibker. Wibker also testified to statements made by the children, attitudes they displayed, and conclusions she had drawn about the dynamics in the Clifton household. In addition, C.M. testified about statements she had made to Dr. Douglas Stevens, another counselor. On appeal Clifton, argues that the trial judge erred in allowing these statements to be admitted into evidence because they are within the psychotherapist-patient privilege. A.R.E. 504(b). No objection was made to the admission of this evidence at trial, therefore, we review this issue for plain error only. Evidence Rules 504(b) and (c) provide: (b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional conditions, including alcohol or drug addiction, among himself, his physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family. (c) Who May Claim the Privilege. The privilege may be claimed by the patient, by his guardian, guardian ad litem or conservator, or by the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient. The plain language of the rule appears to require that someone act to exercise the privilege. That simply was not done in this case. Consequently, we do not find plain error. DOUBLE JEOPARDY Clifton next contends that allowing separate convictions for Counts I and II violat ed his federal and state guarantees against double jeopardy. Count I charged Clifton with engaging in sexual penetration with J.B.M. The act of sexual penetration involved fellatio. Count II charged Clifton with engaging in sexual contact with J.B. M. The act of sexual contact involved masturbation. Clifton claims that the two offenses could have occurred as a single episode, and that therefore the separate convictions and sentences on Counts I and II violated the constitutional prohibitions against double jeopardy. U.S. Const, amend. Y; Alaska Const, art. 1, § 9. In Oswald v. State, 715 P.2d 276 (Alaska App.1986), the defendant digitally penetrated a minor female and then had genital intercourse with her shortly thereafter. He was convicted of two offenses, one for the digital penetration, and the other for the genital intercourse. We concluded that the two sexual offenses constituted one continuous assault, and that only one conviction and one sentence was permitted. Likewise, in Rodriquez, 741 P.2d at 1207, we accepted a state's concession of error that only one act was involved when Rodriquez had both committed fellatio and masturbated a minor victim. Moreover, in Horton v. State, 758 P.2d 628 (Alaska App.1988), this court held that the state has the burden of showing that two separate acts were not part of the same transaction before we would allow two convictions and sentences. Thus, when there is ambiguity whether one or more acts has occurred, the ambiguity is resolved against the state. Although Clifton did not raise this double jeopardy point below, double jeopardy issues may be raised for the first time on appeal without prejudice. Id. at 632. The state argues that more than one sexual act occurred between J.B.M. and Clifton. J.B.M. initially accused Clifton of abusing him twice a week for a period of several months. At trial, J.B.M. and Clifton testified that no abuse occurred. The state argues that the jury did not believe this latter version because they convicted Clifton. Clifton points out, however, that it is at least remotely possible that he abused J.B.M. only once, and that he performed the acts of fellatio and masturbation together as part of one continuous assault. Although J.B.M. initially claimed he had been sexually abused many times, he only specifically described one incident, the most recent incident, when he was late for school because of the abuse. It was possible that the jury focused on that incident alone. It was the only incident specifically identified and the only incident with school records as corroborating evidence. Furthermore, the jury instructions did not require the jury to decide if more than one incident occurred. Nor was the jury required to determine whether they totally believed J.B.M.'s initial accusation. The instructions required only that the jury find that each type of alleged abuse happened once. We therefore conclude that Clifton's conviction on Count II should be reversed, and his sentence on that count should be vacated. SENTENCE APPEAL The jury convicted Clifton of sexual abuse of a minor in the first degree. AS 11.41.434(a)(2)(B). Sexual abuse of a minor in the first degree is an unclassified felony with a maximum sentence of thirty years. There is a presumptive sentence of eight years for a first felony offender. AS 12.-55.125. Clifton is a first felony offender, and Judge Singleton imposed the eight-year presumptive term on this count. The jury also convicted Clifton of sexual abuse of a minor in the second degree for masturbating J.B.M. Judge Singleton imposed a two-year concurrent sentence on this count. We have held that this sentence must be vacated. The jury also convicted Clifton of sexual abuse of a minor in the second degree, AS 11.41.436(a)(3)(B), for engaging in sexual contact with C.M. Sexual abuse of a minor in the second degree is a class B felony. A class B felony carries a maximum penalty of ten years. There is a presumptive sentence of four years for a second felony offender. AS 12.55.125. Judge Singleton imposed a sentence of four years with two years suspended on this count. He imposed this sentence to run consecutively to the sentence on Count I. Therefore, Clifton's composite sentence is twelve years with two years suspended. Clifton argues that Judge Singleton did not make sufficient findings to justify giving him a consecutive sentence. Clifton points to Lacquement v. State, 644 P.2d 856, 862 (Alaska App.1982), where this court held that consecutive sentences for multiple offenses may not exceed the presumptive term for the most serious offense unless the record shows that a longer period of incarceration is necessary to protect the public. He argues that Judge Singleton did not make this finding, and that the record cannot support this finding. One purpose of the legislature in passing the revised criminal code and establishing presumptive sentencing was to eliminate unjustified disparity in sentencing. Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on rehearing, 665 P.2d 30 (Alaska App.1983). A major loophole in the presumptive sentencing scheme, however, was that the statutes in effect at that time gave judges unfettered discretion to impose concurrent or consecutive sentences. See former AS 12.55.025(e). In Lacquement, we essentially applied the reasoning of an earlier Alaska Supreme Court case, Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977) (requirement of affirmative finding by sentencing court that consecutive sentence is necessary to protect public), to presumptive sentencing. See 644 P.2d at 862. In 1982, however, the legislature amended AS 12.55.025(e), and this court and the supreme court have interpreted that statute as indicating a legislative preference for consecutive sentences. State v. Andrews, 707 P.2d 900, 908-10 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). In Jones v. State, 744 P.2d 410 (Alaska App.1987), a defendant was convicted of two counts of manslaughter which arose out of a drunk-driving incident. We found in that case that the trial judge could impose a sentence greater than the five-year presumptive sentence for a single count of manslaughter without making a finding that the imposition of consecutive sentences was necessary to protect the public. In light of the legislative preference for consecutive sentences expressed in AS 12.-55.025(e), we upheld the trial judge's conclusion that Jones' offense was so serious that consecutive sentences were necessary to reflect the magnitude of the crime. Thus, AS 12.55.025(e) has expanded the situations in which a trial judge may give consecutive sentences. The legislature's intent to establish more uniformity in sentencing, however, still remains. Moreover, the Alaska Supreme Court has consistently directed trial courts to give reasons for any sentence. State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). Therefore, trial court judges may impose consecutive sentences that are in excess of the maximum penalty for the most serious offense, or which are greater than the presumptive sentence for the most serious offense. When this is done, however, we will review the sentence to make sure that the record reflects substantial reasons for the imposition of such a sentence. We believe that the record in this case justifies the imposition of a sentence which is somewhat greater than the eight-year presumptive sentence for sexual abuse of a minor in the first degree. In sentencing Clifton, Judge Singleton found that Clifton committed several sexual acts. Two separate victims were involved, and the acts took place over a substantial period of time. In addition, Judge Singleton concluded that Clifton was unwilling to accept the responsibility for his offenses, and that there was a substantial risk of his re-offending. These reasons support the sentence in this case. Accordingly, we conclude that the sentence was not clearly mistaken. Clifton's conviction on Count II is REVERSED, the sentence on Count II is VACATED, and all other convictions are AFFIRMED. SINGLETON, J., not participating.

10547255

Carol Ann JACKSON, Appellant, v. STATE of Alaska, Appellee

Jackson v. State

1973-04-24

No. 1734

278

279

509 P.2d 278

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

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

Carol Ann JACKSON, Appellant, v. STATE of Alaska, Appellee.

Carol Ann JACKSON, Appellant, v. STATE of Alaska, Appellee. No. 1734. Supreme Court of Alaska. April 24, 1973. Herbert D. Soil, Public Defender, Anchorage, Olof K. Hellen, Asst. Public Defender, Juneau, for appellant. John E. Havelock, Atty. Gen., Daniel W. Hickey, Asst. Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR and BOOCHEVER, JJ.

332

2092

PER CURIAM. Appellant was convicted, after jury trial, of unlawful possession of heroin, contrary to AS 17.10.010. She has raised four claims of error on appeal: (1) that the affidavit supporting the issuance of a search warrant was defective; (2) that the court erred in failing to give an instruction on "momentary possession" of narcotics as an excuse to the offense charged; (3) that the instruction to the jury setting forth the elements of the offense was defective; and (4) that it was error to allow appellant to be cross-examined about her associations with persons involved in narcotics traffic. We have examined the record and the authorities cited by appellant, and have considered the arguments of counsel. We conclude that the affidavit supporting the issuance of the search warrant was sufficient because there was a substantial basis for crediting the observations of the informant, which were related in the affidavit. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). As to appellant's second and third claims, no instruction on momentary possession was requested, and no objection was made to the instruction which was given. We are not persuaded that plain error occurred. Therefore, we will not consider these points further. See Garroutte v. State, Opinion No. 877, 508 P.2d 1190 (Alaska 1973). Lastly, we hold that the cross-examination of appellant was permissible in scope. Appellant in her direct testimony disclaimed any knowledge concerning heroin. It was quite proper, and not an abuse of discretion, for the trial judge to permit cross-examination of this type. Pedersen v. State, 420 P.2d 327, 337 (Alaska 1966). Affirmed. ERWIN and FITZGERALD, JJ., not participating.

10395227

Joe Q. WARD, Petitioner, v. STATE of Alaska, Respondent

Ward v. State

1988-06-17

No. S-2078

87

92

758 P.2d 87

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Joe Q. WARD, Petitioner, v. STATE of Alaska, Respondent.

Joe Q. WARD, Petitioner, v. STATE of Alaska, Respondent. No. S-2078. Supreme Court of Alaska. June 17, 1988. Thomas A. Flippen, II, Boyko, Davis, & Dennis, Anchorage, for petitioner. Robert D. Bacon, Asst. Atty. Gen., Anchorage, Grace Berg Schaible, Atty. Gen., Juneau, for respondent. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

3274

19569

OPINION RABINO WITZ, Justice. This petition for hearing presents two questions. First, did the district court err in denying Ward's motion to suppress the results of his Intoximeter test when State Troopers refused his request to have an independent blood test performed at Alaska Native Medical Center, as provided in AS 28.35.033(e)? Second, was Ward denied his right to a unanimous jury verdict when the district court instructed the jury that it could return a guilty verdict without agreeing upon whether his guilt was established by proof that he drove while under the influence of intoxicating liquor or by proof that his breath alcohol level exceeded .10 grams of alcohol per 210 liters of breath? I. FACTUAL CONTEXT. Joe Q. Ward was arrested for driving under the influence of alcohol. He was taken to State Trooper headquarters where he performed certain field sobriety tests and submitted to an Intoximeter test. The Intoximeter showed that Ward had .225 grams of alcohol per 210 liters of breath. Before Ward took the breath test, he was belching. The arresting trooper warned Ward to stop belching and advised him that if he continued to belch, a charge of refusing the breath test would be filed against him. The trooper then waited twenty minutes — the standard observation period before administering the Intoxime-ter test. Ward contends that he continued to belch during that period, but that he was able to mask his belching. At the conclusion of the observation period, Ward provided a breath sample for analysis. The sample was captured in a magnesium perchlorate tube and preserved, as required by Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982). Ward, who claims he was surprised by the Intoximeter reading of .225, was then advised of his right to obtain an independent blood test by a person or entity of his choosing. Ward accepted the opportunity, and requested to be taken to Alaska Native Medical Center (ANMC). En route to ANMC, the trooper was instructed by radio not to honor Ward's request because the state did not have a contract for blood testing with ANMC. Ward declined an offer of transportation to Providence or Hu-mana Hospitals, with which the state had contracts. No independent test was conducted to determine the alcohol content of Ward's blood. II. PROCEDURAL CONTEXT. Ward made a pretrial motion to suppress the results of the Intoximeter based on the Troopers' violation of AS 28.35.033(e). In support of the motion Ward submitted an affidavit from the Director of Ambulatory Care at ANMC, who stated that qualified personnel had been available at the time of Ward's request to extract a blood sample and to test it for alcohol content. The Director further advised that the test results would have been available in approximately one hour and that ANMC would have provided service to Ward. Ward argued in his motion to suppress the results of the Intoximeter test that such an independent blood test was of critical importance because the breath sample that had been analyzed, and then preserved in the perchlorate tube, had been contaminated by his belching. Ward further contended that only by testing his blood alcohol content could he show that the Intoxim-eter analysis of his breath alcohol level was artificially high due to belching. The Troopers' prevention of his attempt to obtain a blood test at ANMC, argued Ward, deprived him of his due process right "to conduct an independent test to assure the accuracy of the breathalyzer results." Serrano, 649 P.2d at 258, n. 5. The district court, assuming as true the facts set forth by Ward, denied the motion to suppress. The district court held that "[t]he saving of the defendant's breath by means of a perchloride [sic] tube is sufficient to satisfy the dictates of Cisneros v. State, 649 P.2d 256 (Alaska App. 1982) [companion case to Serrano]," and "thus there is no constitutional violation." The district court also found that "[t]he facts do demonstrate a violation of AS 28.35.-033(4)(e). [sic] However, the remedy for such a violation is not suppression of the evidence." The case was tried before Judge Martha Beckwith. The district court denied Ward's request for a jury instruction on unanimity that would have required the jury unanimously to find him guilty of driving under the influence of alcohol in violation of AS 28.35.030(a)(1) or of driving with . a blood alcohol level of .10 or more. Rather, the district court instructed the jury: "You must be unanimous in your verdict. You need not be unanimous, however, on which of the two theories the state has proven." Ward was convicted by the jury in a general verdict that found him "guilty as charged in the complaint." Ward appealed to the court of appeals, which affirmed his conviction. Ward v. State, 733 P.2d 625 (Alaska App.1987). The court of appeals held that Serrano required "breath sample preservation or reasonable efforts to assist in obtaining a blood test, but not both." Id. at 626 (emphasis in original). "Ward's assignment of error regarding the blood test" was thus not a question "of constitutional significance, but one of statutory interpretation." Id. The court "refuse[d] to read . a requirement into the statute" that the Troopers had an obligation to transport Ward "to a doctor or hospital of his own choice." Id. at 627 (emphasis in original). The court of appeals also ruled against Ward on the issue of jury unanimity. Relying on State v. James, 698 P.2d 1161, 1165 (Alaska 1985), in which this court held that the jury need "only . be unanimous in its conclusion that the defendant committed a single offense in the [first-degree assault] statute," the court of appeals found no error in Judge Beckwith's instruction. Ward, 733 P.2d at 627. We granted Ward's petition from both of these affir-mances by the court of appeals. III. DID THE TRIAL COURT ERR IN DENYING WARD'S MOTION TO SUPPRESS THE RESULTS OF HIS INTOXIMETER TEST? A. Ward's Right to a Blood Test by a Facility of His Own Choice Was Denied. Alaska Statute 28.35.033(e) states: The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. Therefore, Ward had the right to have a blood test performed by "a . qualified person of [his] own choosing," i.e., by per sonnel at ANMC. The only reason given by the Troopers for not taking Ward to ANMC was that the state did not have a contract with ANMC. The state argues on appeal that "the statute does not require the police to provide the driver with free transportation to the chosen facility, nor does it require the police to pay for the second test." See also Ward, 733 P.2d at 627. However, these concerns are not at issue in the instant case. Here the Troopers voluntarily offered to take Ward to the facility of his choice, began to drive him there, and then, en route, decided not to take him to ANMC because of the lack of a contract with the state. Furthermore, ANMC's Director of Ambulatory Care stated in his affidavit that the blood test would have been performed at Ward's request, and he did not dispute Ward's claim that it would have been performed at no cost to Ward or the state. The statute says nothing about contractual relationships between the state and qualified facilities for blood tests. It states only that the arrestee has the right to an additional test by a person of his or her own choosing. The Troopers denied Ward the right to obtain such a test after they had agreed to transport him to ANMC. This was a violation of Ward's right under AS 28.35.033(e). B. Because Ward Was Denied the Opportunity to Obtain a Blood Test by the Facility of His Choice the Results of His Breathalyzer Test Must be Excluded. The applicable statute provides a remedy for a defendant's inability to obtain an independent blood test: The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. AS 28.35.033(e). The state argues that the statutory remedy is the exclusive one available to Ward. In a case such as the instant one, however, such a remedy is inadequate to protect the interests of the defendant. Thus, we must consider, as we did previously in Copelin v. State, 659 P.2d 1206, 1214 (Alaska 1983), whether "invocation of the exclusionary rule is appropriate . even though there is no provision for doing so in the statute. ." We conclude that where, as here, the police deprive a defendant of his or her statutory right to an independent blood test, the results of the defendant's breath test must be excluded. The analysis we employed in Copelin is equally applicable, and equally compelling, here. "The breathalyzer test . provides time for reflection before action and . consists of intentional efforts by the police to obtain evidence." Copelin, 659 P.2d at 1214. Because the police in the instant case acted deliberately in denying a defendant the right to a blood test, "application of the exclusionary rule will serve to deter future illegal police conduct." Id. See also Whisenhunt v. State, Department of Public Safety, 746 P.2d 1298, 1299 (Alaska 1987) (violation of statutory right to consult counsel before being required to decide whether to submit to breathalyzer test requires suppression of breathalyzer results in a civil license revocation proceeding). Furthermore, "a violation in this type of case . has an effect on the defendant's ability to present a defense at trial." Copelin, 659 P.2d at 1214-15. We articulated our concern for the defendant's ability to put on a defense in Whisenkunt. "[A]n additional test of breath or blood . may be of particular importance since it is a means of testing the reliability of the police administered test. The latter is not entitled to a conclusive presumption of accuracy." 746 P.2d at 1299 (citations omitted). Ward was unable, as a result of being denied a blood test, to attack the accuracy of his Intoximeter test. See Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976); Municipality of Anchorage v. Serrano, 649 P.2d 256, 259 (Alaska App. 1982). The results of his Intoximeter test must therefore be suppressed. IV. WAS IT ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY THAT IT NEED NOT AGREE UNANIMOUSLY ON THE THEORY UNDER WHICH WARD WAS SHOWN TO HAVE DRIVEN WHILE INTOXICATED? Alaska Statute 28.35.030, entitled "Operating a vehicle, aircraft or watercraft while intoxicated," states: (a) A person commits the crime of driving while intoxicated if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of intoxicating liquor, or any controlled substance listed in AS 11.71.140 — 11.71.-190; (2) when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10 per cent or more by weight of alcohol in the person's blood or 100 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.10 grams or more of alcohol per 210 liters of the person's breath; or (3)while the person is under the combined influence of intoxicating liquor and another substance. (b) Driving while intoxicated is a class A misdemeanor. Ward argues that AS 28.35.030(a)(1) and (a)(2) "describe conceptually distinct offenses . and that he was therefore entitled to an instruction requiring unanimous jury agreement as to which of these offenses had been proved in order to support a finding of guilt." The state, on the other hand, argues that AS 28.35.030(a) is a "statute defining an offense . that . can be committed in more than one way" and that therefore "the jury need not unanimously agree on a particular statutory theory in order to convict a defendant." The state relies on State v. James, 698 P.2d 1161 (Alaska 1985), as did the court of appeals. Ward, 733 P.2d at 627. James was convicted of first degree assault under a statute analogous to AS 28.35.030. The statute at issue, former AS 11.41.200, provided in part: (a) A person commits the crime of assault in the first degree if (1) with intent to cause serious physical injury to another person, he causes physical injury to any person by means of a dangerous instrument; (3) he intentionally performs an act that results in serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. James, 698 P.2d at 1163 n. 2. The trial court instructed the jury that it could find James guilty if it unanimously agreed that he had committed first degree assault as described in either AS 11.41.200(a)(1) or AS 11.41.200(a)(3). The jury was not required to reach unanimity as to one or the other theory, only as to the defendant's guilt of the offense. Id. at 1162-63 (footnote omitted). We held in James that the first degree assault statute described a single offense, and that the requirement of a unanimous jury verdict was met as long as all members of the jury "agree that the defendant committed a single offense." Id. at 1167. The statute and instruction at issue in the present case are similar to those in James. Like the court of appeals, we "see no reason to limit [the James ] holding to assault cases . [and] find no basis for distinguishing James from the present case." Ward, 733 P.2d at 627. We listed four factors in James to determine whether a statute describes a single offense or multiple offenses. Those factors are: (1) the language of the statute itself; (2) the legislative history; (3) the nature of the proscribed conduct (whether the statute describes distinctly different kinds of conduct); and (4) the appropriateness of multiple punishment for the conduct charged in the indictment. 698 P.2d at 1165. Application of these factors to the instant case leads to the same result reached in James. First, the statutory language is phrased in the same manner as the statute at issue in James. Second, there is no legislative history available. See Van Brunt v. State, 653 P.2d 343 (Alaska App.1982); Van Brunt v. State, 646 P.2d 872 (Alaska App.1982). Third, the conduct prohibited by the two clauses is similar; the alleged offender frequently will have violated both clauses as a result of the same act of imbibing intoxicating liquor. Finally, multiple punishment would be inappropriate for a person charged with violating both clauses. Although there is no available legislative history, it seems clear from this analysis that AS 28.35.030 describes several ways of committing the single offense of driving while intoxicated. Because AS 28.35.-030(a)(1) and (a)(2) describe merely different theories by which a person may be shown to have driven while intoxicated, it was not necessary that the jury agree unanimously upon the theory by which Ward violated the statute. REVERSED. . See 7 AAC 30.020 (Eff. 2/20/70; am. 7/27/85). . Ward argues that he suffers from a gastric condition that causes him to belch frequently, and that he has learned to mask his belching to save himself from social embarrassment. The arresting trooper testified that Ward did not belch during the observation period. .The Director stated that ANMC "does not refuse treatment . to anyone if they say they are Alaska Natives.... If a person has a record of treatment at ANMC, this indicates a prior determination that he/she is a Native Alaskan/American." Ward had a long history of treatment at ANMC. . Ward filed a Motion to Rescind or Otherwise Invalidate Order Denying Defendant's Motion to Suppress, which the district court treated as a peremptory challenge of Judge White. The matter was reassigned to Judge Stewart. Judge Stewart denied Ward's motion to suppress. He later denied Ward's Motion to Reconsider as well. . In interpreting the meaning of a statute, we look first to the language thereof. University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983). In that case we recognize[d] that there is no longer a plain meaning rule as such in Alaska law. Where a statute's meaning appears clear and unambiguous, however, the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent. Municipality of Anchorage v. Sisters of Providence in Washington, Inc., 628 P.2d 22, 27 n. 6 (Alaska 1981); State v. City of Haines, 627 P.2d 1047, 1049 (Alaska 1981). See also Copelin v. State, 659 P.2d 1206, 1211 (Alaska 1983), where we held that a person arrested for driving while under the influence has a right to contact an attorney "immediately after an arrest." (Emphasis supplied.) In response to the state's argument that "it would be impracticable, unreasonable, and contrary to the intent of the implied consent statute" to allow an arrestee to contact a lawyer before taking a breath test, we disagreed, stating, " 'Immediately' means just that." Id. . Because of our conclusion that violation of Ward's statutory right requires exclusion of the results of his Intoximeter test, we need not address Ward's argument that his due process rights were violated. . The instruction at issue in Ward's trial stated: The defendant has been charged with one criminal offense, driving while intoxicated, which may be proven in either of two ways: the state must prove beyond a reasonable doubt that defendant drove either while under the influence of intoxicating liquor or with a level of .10 grams of alcohol per 210 liters of his breath. You must be unanimous in your verdict. You need not be unanimous, however, on which of the two theories the state has proven. It is sufficient that each of you is convinced of defendant's guilt beyond a reasonable doubt, under one theory or the other. . We relied heavily on State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976) in considering the challenged assault statute in James. The Washington Supreme Court employed somewhat different factors in determining that the state welfare fraud statute described several ways of committing the single offense of grand larceny. The factors it looked to were: [1] the title of the act; [2] whether there is a readily perceivable connection between the various acts set forth; [3] whether the acts are consistent with and not repugnant to each other; [4] and whether the acts may inhere in the same transaction. 553 P.2d at 1331. . See State v. Franco, 96 Wash.2d 816, 639 P.2d 1320, 1322-23 (1982), where the Washington Supreme Court, relying upon Arndt, determined that its DWI statute, which is very similar to Alaska's, described a single offense.

10395564

Frank N. ALFRED, David Andrew, Agnes Chief, Robert Fox, Paul J. Gregory, Jr., Wassillie L. Gregory, Joseph A. Larson, Nicolai M. Nicolai, Elia Tinker, Wassillie Waska, Jimmy J. Tony, Appellants, v. STATE of Alaska, Appellee

Alfred v. State

1988-07-29

Nos. A-2239 to A-2248 and A-2263

130

132

758 P.2d 130

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Frank N. ALFRED, David Andrew, Agnes Chief, Robert Fox, Paul J. Gregory, Jr., Wassillie L. Gregory, Joseph A. Larson, Nicolai M. Nicolai, Elia Tinker, Wassillie Waska, Jimmy J. Tony, Appellants, v. STATE of Alaska, Appellee.

Frank N. ALFRED, David Andrew, Agnes Chief, Robert Fox, Paul J. Gregory, Jr., Wassillie L. Gregory, Joseph A. Larson, Nicolai M. Nicolai, Elia Tinker, Wassillie Waska, Jimmy J. Tony, Appellants, v. STATE of Alaska, Appellee. Nos. A-2239 to A-2248 and A-2263. Court of Appeals of Alaska. July 29, 1988. Donald L. Surgeon, Asst. Public Defender, Bethel, and Dana Fabe, Public Defender, Anchorage, for appellants. Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1200

7431

OPINION COATS, Judge. Frank N. Alfred and the other appellants each pled no contest to separate misdemeanor offenses in Bethel District Court. Magistrate Craig R. McMahon ordered, as one of the conditions of probation, each appellant to contact the Bethel Alcohol Safety Action Program (BASAP) by a specified date and to follow the recommendations of the BASAP counselors. When each appellant failed to comply with this condition, the state declined to initiate probation revocation proceedings. Magistrate McMahon then sua sponte initiated contempt proceedings and found each appellant to be in criminal contempt of court for failure to comply with this condition of probation. On appeal, appellants challenge the court's authority to hold them in contempt for a probation violation. We reverse. There certainly may be circumstances when it would be appropriate for a court to find a person in contempt for violating an order to contact an alcohol rehabilitation agency. Normally, however, the sanction for violation of a condition of probation is revocation of probation. In Brown v. State, 559 P.2d 107 (Alaska 1977), the Alaska Supreme Court noted that a defendant who receives a suspended imposition of sentence and is placed on probation has two alternatives. The defendant may elect to accept the conditions of probation or he may choose to reject the probation conditions and receive the suspended term: The statutes concerning probation contain no provision as to its acceptance or rejection. However, it is settled that a defendant has the right to refuse probation, for its conditions may appear to the defendant more onerous than the sentence which might be imposed. Id. at 111 n. 13 (quoting In re Osslo, 51 Cal.2d 371, 334 P.2d 1, 8 (1958)). See also 4 C. Torcia, Wharton's Criminal Procedure, § 614 (12th ed. 1976); State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329, 1330 (1977); State v. Randolph, 316 N.W.2d 508, 510 (Minn.1982); State v. Jackson, 272 N.W.2d 102, 104 (S.D.1978). Brown implies that a defendant, who violates a condition of probation, is to be sanctioned only by revocation of that probation. We therefore conclude that the court may not invoke its contempt power to punish a defendant for a probation violation, at least when the defendant has not been warned of this possibility. The majority of authorities are apparently in agreement with this view. Our re search reveals only one jurisdiction that permits a court to invoke its contempt power as a sanction for a violation of a probation condition. In People v. Patrick, 83 Ill.App.3d 951, 39 Ill.Dec. 451, 404 N.E.2d 1042 (1980), the defendant pled guilty to unlawful delivery of a controlled substance and received a probationary sentence of four years. When the defendant failed to report to the probation officer assigned to him, in violation of one of the conditions, the state filed a petition to revoke his probation. The court found the defendant to be in contempt of court for the violation, and sentenced him to thirty days' imprisonment. Id. 39 Ill.Dec. at 452, 404 N.E.2d at 1043. The court in Patrick upheld the trial court's use of the contempt proceedings. The court noted that it had previously approved contempt as a sanction for a violation of the terms of periodic imprisonment; that prior to 1964, the Illinois statutes provided that contempt of court was the only sanction permissible for a violation of a condition of probation; and that the 1973 commentary to the probation statutes stated that "the court retains the sanctions of criminal contempt and fining the offender for violating the conditions of probation." Id. 39 Ill.Dec. at 453, 404 N.E.2d at 1044. The court concluded that the trial court's inherent contempt power, coupled with the language of the commentary, granted the trial court the power to punish probation violations with contempt. Id. The Illinois appellate courts have also upheld the use of contempt proceedings to punish probation violations in subsequent cases. See, e.g., People v. Mowery, 116 Ill.App.3d 695, 72 Ill.Dec. 238, 452 N.E.2d 363, 368 (1983). We decline to adopt the procedure upheld by the Illinois court. The actions by the Illinois court were based, in part, on the language of the commentary and the fact that, at one time, the Illinois statutes authorized the use of the contempt proceeding as a sanction for a probation violation. There appears to be no such analogous commentary or legislative history in Alaska. Moreover, Illinois appears to be the only jurisdiction to have adopted such an unusual procedure. We have a fairness concern here as well. We recognize that the sentencing judge generally informs each defendant who receives a suspended sentence that the suspended term, or a portion thereof, may be imposed at a probation revocation hearing. When a defendant violates a condition of probation, we believe that fairness requires that the court adhere to the terms of its agreement, and conduct a probation revocation hearing, not a contempt hearing. Accordingly, we conclude that the court erred when it initiated the contempt proceeding. The contempt convictions are REVERSED and this case is REMANDED for proceedings consistent with this opinion. . Frank N. Alfred, David Andrew, Agnes Chief, Robert Fox, Joseph A. Larson, Wassillie Waska, and Jimmy J. Tony pled no contest to driving while intoxicated. AS 28.35.030(a)(1). Andrew and Fox also pled no contest to driving while license suspended. AS 28.15.291. Waska also pled no contest to unlawfully possessing or consuming alcohol. AS 04.16.050. Paul J. Gregory, Jr., pled no contest to misconduct involving weapons in the second degree for recklessly discharging a firearm. AS 11.61.210(a)(1), (3). Wassillie L. Gregory pled no contest to a charge of assault in the fourth degree for threatening someone with a knife. AS 11.41.230(a)(3). Nicolai M. Nicolai pled no contest to assault in the fourth degree for kicking someone in the face and back. AS 11.41.230(a)(1). Elia Tinker pled no contest to criminal trespass in the first degree for unlawfully entering a house and stealing liquor. AS 11.46.320(a)(2). . Alaska Statute 09.50.010(5) defines contempt of the authority of the court as "disobedience of a lawful judgment, order, or process of the court," and AS 28.35.030(c) requires the court to direct a defendant convicted of driving while intoxicated to attend alcohol screening as a condition of probation: In addition [to a minimum term of imprisonment and revocation of driver's license], the court shall order, and a person convicted under this section shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation that the court, after consideration of any information compiled under (d) of this section, finds appropriate. (Emphasis added).

10399230

Greg JOHNS, Leo Woods, and Mike Lynch, Appellants, v. COMMERCIAL FISHERIES ENTRY COMMISSION and the State of Alaska, Appellees

Johns v. Commercial Fisheries Entry Commission

1988-07-01

No. S-2057

1256

1266

758 P.2d 1256

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Greg JOHNS, Leo Woods, and Mike Lynch, Appellants, v. COMMERCIAL FISHERIES ENTRY COMMISSION and the State of Alaska, Appellees.

Greg JOHNS, Leo Woods, and Mike Lynch, Appellants, v. COMMERCIAL FISHERIES ENTRY COMMISSION and the State of Alaska, Appellees. No. S-2057. Supreme Court of Alaska. July 1, 1988. Douglas Pope, Wagstaff, Pope, Rogers and Clocksin, Juneau, for appellants. Margot 0. Knuth, Asst. Atty. Gen., Juneau, and Grace Berg Schaible, Atty. Gen., Juneau, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

5568

34519

OPINION MATTHEWS, Chief Justice. This appeal raises several challenges to the limitation of the Southeast Alaska roe herring purse seine fishery. Specifically, the appellants argue that the Commercial Fisheries Entry Commission (CFEC) made errors in establishing the maximum number of entry permits for the fishery. The appellants also claim that the hardship priority classification scheme established for the fishery failed to consider relevant factors. Finally, the appellants argue that the CFEC erred in failing to set an optimum number for the fishery. BACKGROUND ON THE LIMITED ENTRY ACT In 1973, the Alaska legislature enacted the Limited Entry Act. AS 16.43.010-990. The legislature delegated implementation of the Act to the CFEC. AS 16.43.100. The Act recognized that commercial fishing had reached levels which "have impaired or threatened to impair the economic welfare of the fisheries of the state, the overall efficiency of the harvest and the sustained yield management of the fishery resource." AS 16.43.010(b). The CFEC was required to identify impaired fisheries and designate them as distressed. AS 16.43.230. In addition, the CFEC was to limit entry into those fisheries that, although not designated as distressed, had reached levels of participation which required limitation in order to achieve the purposes of the Act. AS 16.-43.240. Once the decision is reached to limit entry into a fishery, the CFEC must first establish the maximum number of permits to be issued for the fishery. For distressed fisheries, AS 16.43.240(a) provides that the maximum number "shall be the highest number of units of gear fished in that fishery during any one of the four years immediately preceding January 1, 1973." The Act does not provide guidelines for setting the maximum number for non-distressed fisheries. Having set the maximum number, the CFEC is to "adopt regulations establishing qualifications for ranking applicants for entry according to the degree of hardship they would suffer by exclusion from the fishery." AS 16.43.250. The CFEC has adopted point systems for each of the limited fisheries for this purpose. In addition, AS 16.43.250(b) requires the CFEC to designate priority classifications of those "who would suffer significant economic hardship by exclusion from the fishery." These persons may not be denied an entry permit even if the maximum number of permits must be exceeded to accommodate them. AS 16.43.240. Finally, the CFEC is to establish an optimum number of permits for each fishery which may be greater or less than the number of permits that have been actually issued for the fishery. AS 16.43.290. If the optimum number exceeds the issued permits, the state must issue additional permits under a method which assures the receipt of fair market value. AS 16.43.330. If the optimum number is less than the permits issued the state is to buy back the number of permits required to reach the optimum number. AS 16.43.310-20. FACTUAL AND PROCEDURAL BACKGROUND In May of 1975, the CFEC received a petition from certain Southeast Alaska herring seine fishermen requesting the CFEC to limit entry into the fishery. The CFEC studied biological data on the fishery, and consulted the Alaska Department of Fish and Game. By December, 1975, a decision had been made to limit entry into the fishery. In November of 1976, the CFEC proposed regulations establishing the maximum number of permits for the Southeast roe herring purse seine fishery at thirty-five. After holding public hearings in various locations, the CFEC adopted the proposed regulations. The CFEC also adopted regulations establishing a point system for allocation of the entry permits. 20 AAC 05.662-666 (eff. 2/25/77). The appellants are fishermen who had fished the Southeast Alaska roe herring fishery before it was limited. Each applied for permits to the fishery. Prior to final adjudication on their permit requests, appellants filed this suit seeking declaratory and injunctive relief. The superior court dismissed the action on the ground that the appellants lacked standing since they had not yet been excluded from the fishery. We reversed and remanded, holding that the appellants were interested parties for the purposes of challenging the regulations. Johns v. Commercial Fisheries Entry Comm'n, 699 P.2d 334 (Alaska 1985). On remand, appellant Johns moved for a preliminary injunction requesting the court to order the CFEC to issue him an interim permit for the 1986 season. After hearing testimony, the superior court issued the injunction. The parties next made cross-motions for summary judgment. After a hearing on the motions, the superior court found that no genuine material issues of fact existed which would preclude summary judgment. The court granted summary judgment in favor of the CFEC on all issues. Johns then made a motion for another preliminary injunction ordering the CFEC to issue him an interim permit during the pendency of this appeal. The trial court granted this motion. Appellants Woods and Lynch's applications for entry into the fishery have not been finally adjudicated but they do not expect to establish their claims for a permit. Johns' application was denied by the CFEC. That decision was affirmed by this court in a Memorandum Opinion and Judgment dated July 3, 1985 (No. 241; File No. S-606). DISCUSSION I. DID THE CFEC ACT PROPERLY IN ESTABLISHING THE MAXIMUM NUMBER OF PERMITS FOR THE FISHERY BY ADOPTING A REGULATION WITHOUT PREPARING A DECISIONAL DOCUMENT? Alaska Statute 16.43.240(b) provides: When the commission finds that a fishery not designated as a distressed fishery under AS 16.43.240 has reached levels of participation which require the limitation of entry in order to achieve the purposes of this chapter, the commission shall establish the maximum number of entry permits for that fishery. Appellants, Johns, Woods, and Lynch (hereinafter Johns) argue that the CFEC's action establishing the maximum number of permits must be vacated because the action was not accompanied by a decisional document. The trial court held that the CFEC's action in establishing the maximum number by regulation was a "quasi-legislative" action in which the commission is granted broad discretion. Such actions, the court stated, will not be disturbed if they are adopted in accord with the Administrative Procedure Act (APA), are reasonable, are within the scope of the agency's authority, and are reasonably necessary to effect the agency's purposes. Because a written decisional document is not required under the APA for "quasi-legislative" actions, the court found the CFEC's actions were proper and granted summary judgment to the state on this issue. We have noted that the CFEC has been given broad discretion in promulgating regulations. See Kalmakoff v. State, Commercial Fisheries Entry Comm'n, 693 P.2d 844, 851 (Alaska 1985). To assess the validity of an administrative regulation, we determine "whether the legislature delegated rule-making authority to the [agency], whether the [agency] followed the Administrative Procedure Act in promulgating the regulation, and whether the regulation is consistent with and reasonably necessary to implement the statutes authorizing its adoption." Chevron U.S.A. Inc. v. Le-Resche, 663 P.2d 923, 927 (Alaska 1983) citing Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). See also Kenai Peninsula Fishermen's Co-op Ass'n v. State, 628 P.2d 897 (Alaska 1981). In addition, we review whether the regulation is "reasonable and not arbitrary." Kenai, 628 P.2d at 906; Kelly, 486 P.2d at 911. A. Did the CFEC have authority to adopt regulations establishing the maximum number of permits for the fishery? Initially, we must determine if the CFEC was required by the Limited Entry Act to make a formal finding in establishing the maximum number of permits for the fishery, rather than promulgate a regulation, the procedure the commission adopted. While the CFEC admits that a finding is required on the need to limit a fishery, it argues that the statute is unclear as to the procedure to be followed in establishing the maximum number of permits. Johns, on the other hand, argues that the legislature intended the CFEC to reach a finding as to the maximum number simultaneously with its decision to limit the fishery and that therefore a decisional document as to the maximum number was required. Our review of the legislative history cited by Johns and the statute itself does not make clear what procedure the legislature had in mind for establishing the maximum number of permits. Alaska Statute 16.43.-110 provides, however, that "the commission may adopt regulations, consistent with law, necessary or proper in the exercise of its powers or for the performance of its duties under this chapter." It was, therefore, proper for the CFEC to have used its power to adopt regulations to establish the maximum number of permits for the fishery. B. Is a decisional document required when the CFEC adopts regulations? To determine if a particular procedure is required when an agency promulgates a regulation, we consult the Administrative Procedure Act. Chevron U.S.A., 663 P.2d at 927; AS 44.62.010 et seq. Johns admits that the APA does not specifically require a decisional statement when an agency promulgates a regulation, but nonetheless argues that we should impose such a rule. We have adopted a rule that agency decisions, in exercise of their adjudicative powers, must be accompanied by written findings and a decisional document. Phillips v. Houston Contracting, Inc., 732 P.2d 544, 547 (Alaska 1987); City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 875 (Alaska 1985); Ship Creek Hyd. Syn. v. State Dep't of Transp. and Pub. Facilities, 685 P.2d 715, 718 (Alaska 1984); Kenai Peninsula Borough v. Ryherd, 628 P.2d 557 (Alaska 1981). We have suggested but not imposed this requirement in a non-adjudicative context. Southeast Alaska Conservation Council, Inc. v. State, 665 P.2d 544 (Alaska 1983) (timber sale). Although a good case can be made for a decisional document requirement when a regulation is passed or amended, the corn- prehensiveness and detail of the Administrative Procedure Act on this subject tends to indicate that judicial imposition of such a requirement would be counterindicated. However, when an agency promulgates a regulation, the record should at least explain the reasons for the agency's action. This is necessary so that we can meaningfully fulfill our statutory and constitutional review functions. Where the Administrative Procedure Act is followed, such a record is likely to exist — especially if the agency position is expressed at the hearing required under AS 44.62.210(a). In this case, we find that the extensive agency record is sufficient for us to determine the basis for the CFEC's action. Because a decisional statement is not required when an agency issues a regulation, and because the record in this case adequately explains the reasons for the CFEC's actions, the trial court did not err in concluding that the CFEC had acted properly. II. IS THE MAXIMUM NUMBER SET BY THE CFEC CONSISTENT WITH AND REASONABLY RELATED TO THE PURPOSES OF THE LIMITED ENTRY ACT? A. Did the CFEC err in setting the maximum number at a level lower than the historic high for the fishery? Johns argues that even if the CFEC followed the right procedures in adopting the maximum number of permits , for the fishery, the number adopted is inconsistent with and not reasonably necessary to carry out the purposes of the Limited Entry Act. Johns suggests the maximum number adopted is inconsistent with the legislature's intent to gradually limit fisheries by setting the maximum number of permits at a level approximating past participation. The maximum number established by the CFEC for this fishery was thirty-five. 20 AAC 05.320(b)(1) (eff. 2/25/77). This number was less than the number that had participated in the fishery prior to the fishery being limited. A maximum of forty-one purse seiners participated in the fishery in the four years prior to limitation. Johns argues that if the CFEC had followed the legislature's intent, the maximum number for this fishery would have been forty-one. In Rutter v. State, 668 P.2d 1343 (Alaska 1983), we had occasion to review the CFEC's action in setting the maximum number for another "non-distressed" fishery. We noted that "[t]he act provides no guidelines for determining the appropriate number of permits for a non-distressed fishery, other than noting that the number selected should further the legislative purpose." Id. at 1346. We held that the appellant "must establish that the number [set by the CFEC] was the expression of a whim, rather than a product of reason." Id. In Rutter, the appellant had argued that the maximum number set by the CFEC was too high. The number set by the CFEC had reflected "present use." We concluded that the legislature intended the number of permits initially issued to reflect actual use and that therefore the number established by the CFEC was "reasonable and in accord with the letter and spirit of the Limited Entry Act." Id. at' 1347. We find, in this case, that the CFEC erred in establishing a maximum number which was lower than the highest number of units of gear fished in the four years prior to the limitation date. "[T]he legislature intended the number of permits initially issued to reflect actual use.... The Act was designed to protect the reliance interests of all individuals using the fishery as well as aiding the dependent fishermen." Rutter, 668 P.2d at 1347. Thus, the CFEC was obligated to select the maximum number by reference to past participation at the fishery. Had it done so, the CFEC would have selected forty-one as the maximum number. Although we conclude that the CFEC erred in setting a maximum number which is lower than the historic high for this fishery of forty-one, this error does not require reversal. Even though the maximum number was set at thirty-five, thus far, the CFEC has issued forty-four permits for the fishery. This is because the Act requires permits to be issued to those who would suffer significant economic hardship by exclusion from the fishery, regardless of whether the maximum number must be exceeded. AS 16.43.250(b), .270. In addition, it is possible another seven permits will be issued for the fishery to those who claim they fall into the significant hardship category. Thus, the number of permits already issued exceeds the number the CFEC should have set as a maximum. Johns claims, however, that had the CFEC properly set the maximum number for the fishery at forty-one, AS 16.43.270(b) would have required the Commission to actually issue fifty-one permits. Johns' reliance on AS 16.43.270 is misplaced. The CFEC is required to define priority classifications based upon the hardship of similarly situated applicants for permits. AS 16.-43.250. The CFEC must then issue entry permits to "qualified applicants in order of descending priority classification, until the number of entry permits issued equals the maximum number_" AS 16.43.270(a). In no event, however, may a permit be denied to one who falls in a priority category which would suffer significant economic hardship by exclusion from the fishery. Id. Alaska Statute 16.43.270(b) provides: If, within the lowest priority classification of qualified applicants to which some entry permits may be issued, there are more applicants than there are entry permits to be issued, then the allocation of entry permits within that priority classification shall be by lottery. However, the commission shall issue entry permits to all qualified applicants in that priority classification if the total number of permits issued for the fishery does not exceed the maximum number of entry permits established under AS 16.43.240 for that fishery by more than five percent or 10 permits, whichever is greater. A review of AS 16.43.270(b) indicates that it applies only where permits are available for some applicants in a particular priority classification, but issuance to all applicants in that priority classification would exceed the maximum number set for the fishery. AS 16.43.270 never applied to the fishery in question in this case. The CFEC adopted a nine point priority classification system for this fishery. 20 AAC 05.662 (eff. 2/25/77). It then determined that all applicants with she points or more would suffer significant economic hardship and pursuant to AS 16.43.270 could not be denied a permit. 20 AAC 05.666 (eff. 2/25/77). The Commission therefore issued permits to all those who had six points or more. This resulted in the issuance of forty-four permits. As the number of permits issued already exceeded the maximum number the CFEC should have set, no permits were available for lower priority classifications and thus the provisions of AS 16.43.270(b) are inapplicable. Since the number of permits actually issued by the CFEC exceeds the number of permits the CFEC should have set as a maximum, Johns was not prejudiced by the CFEC's failure to set the maximum number no lower than the historic high. B. Is the maximum set by the CFEC in accord with the purposes of the Limited Entry Act? We now address the question of whether the maximum number set by the CFEC is in accord with the purposes of the Limited Entry Act. This point must be distinguished from the point we have discussed above that the Commission had a legal obligation to set the maximum number no lower than the historic high. We must now determine whether the CFEC's action in setting the maximum number at thirty-five is sustainable in light of the general purposes of the Limited Entry Act. The Limited Entry Act has two purposes: enabling fishermen to receive adequate remuneration and conserving the fishery. Art. VIII, § 15 Alaska Const.; AS 16.43.-010; Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255, 1265 (Alaska 1980). Prior to limiting this fishery, the CFEC consulted the Alaska Department of Fish and Game. The CFEC requested the Department to indicate its opinion as to the number of units of gear which could participate in the fishery from the standpoint of sound biological management. The Department of Fish and Game responded that the maximum number should be set so that twenty-five to thirty boats could participate at any opening. The Department also indicated to the CFEC that if the maximum was set above thirty-five it would probably have to close the fishery. The Department's estimate was based upon its belief that the 1977 roe herring take would be in the 1,000 to 1,500 ton range. It noted that it had no evidence that any major increase would occur in the near future. The CFEC had before it information indicating that the level of stocks in the fishery was low. Further, the CFEC had information from the Alaska Department of Fish and Game that they had no evidence that any major increase in the harvest would occur in the near future. Finally, the CFEC had the report of the Alaska Department of Fish and Game which indicated that it felt only twenty to thirty boats would be biologically manageable and that it would probably have to close the fishery if more than thirty-five boats participated. Under these circumstances, we cannot say that the CFEC's action in setting the maximum number at thirty-five "was an expression of whim rather than a product of reason." Rutter, 668 P.2d at 1346. We find that the CFEC's action was in accord with the purposes of the Limited Entry Act. III. WAS THE CFEC'S ACTION IN SETTING A MAXIMUM NUMBER FOR THIS FISHERY UNCONSTITUTIONAL? Johns challenges the constitutionality of the CFEC's action in setting the maximum number for this fishery at thirty-five. Johns argues that the CFEC's action violates the equal rights clauses of article I, section 1 and article VIII, section 17, because the maximum number of permits authorized does not bear a strong enough relationship to the purposes of the Limited Entry Act. In addition, Johns argues that the maximum number set by the CFEC is not consistent with the constitutionally permitted purposes of limited entry as provided in article VIII, section 15 of the Alaska Constitution. These constitutional arguments are in substance answered by part II.B. of this opinion. The CFEC's action was justified by resource conservation reasons. Imposing a limited entry system for these reasons is expressly authorized by article VIII, section 15 of the Alaska Constitution. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983). It is a non-sequitur to contend that the exclusivity which is inherent in any limited entry system violates the state constitution, since the limited entry system is authorized under the state constitution. Id. at 1190. IV. DID THE CFEC FAIL TO CONSIDER RELEVANT FACTORS IN ESTABLISHING HARDSHIP PRIORITIES FOR THIS FISHERY? A. Did the CFEC have discretion to adopt priority classification regulations which did not measure all of the hardship criteria standards listed in AS 16.43.250? When it adopted regulations for the fishery, the CFEC also adopted findings indicating that its point system for the fishery would not examine "consistency of participation within the fishery within a calendar year" or "income dependence." Johns argues that the CFEC lacked the discretion to disregard these factors when it established the priority classifications for the fishery. In Rutter, we invalidated a regulation promulgated by the CFEC because the regulation failed to consider certain indicia of economic dependence which were described in AS 16.43.250(a)(1). Rutter, 668 P.2d at 1349. We determined that these indicia were mandatory rather than discretionary. Id. Subsequent to our decision in Rutter, the legislature amended AS 16.43.250(a)(1) to clearly give the CFEC discretion as to whether to consider all of the indicia of economic dependence for a particular fishery. See Haynes v. State, CFEC, 746 P.2d 892 (Alaska 1987). This amendment also gave the CFEC discretion as to whether to consider both the number of years of participation in a fishery and the consistency of participation when it awards points based upon past participation under AS 16.43.250(a)(1). In Haynes we stated: In light of the legislature's rejection of the Rutter rule, we cannot justify applying the decision retroactively. To do so would not only require the CFEC to reopen a significant number of closed cases, but would also require it to develop a new set of regulations pursuant to an abandoned statute and to apply contradictory regulations simultaneously. The heavy burden such a rule would impose on the CFEC and the inevitable confusion it would introduce to the administrative process outweigh any bene fit to be gained by a retroactive application. Id. at 895. Our decision in Haynes applies to the case at hand, and therefore we find the CFEC had discretion to exclude considerations of income dependence and consistency of participation. B. Did the CFEC abuse its discretion in failing to consider income dependence and consistency in participation? Johns next argues that even if the CFEC had the authority not to measure each factor, it was an abuse of discretion for the CFEC not to measure consistency of participation and economic dependence in this case. In order to show that an administrative agency has abused its discretion, "it is not enough that the prescribed system . shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse." AT & T Co. v. United States, 299 U.S. 232, 236-37, 57 S.Ct. 170, 172, 81 L.Ed. 142, 145 (1936) (quoted in Kelly v. Zamarello, 486 P.2d 906 (Alaska 1981)). To show an abuse of discretion, the appellant must show that the agency decision was an "expression of whim rather than an exercise of judgment." Id. In this case the CFEC issued special findings indicating why it was not measuring consistent participation and income dependence for this fishery. The CFEC noted that the opening in this fishery may only last a few hours or minutes. It was therefore not uncommon for an operator to be unable to participate. The CFEC concluded that "consistency of participation does not truly reflect the historical participation of herring purse seine fishermen in these fisheries. Measurement of consistency of participation in a calendar year within the cited constraints is not only impractical but impossible in terms of accuracy." As to income dependence, the CFEC found "[f]ew, if any, fishermen actually depend on the herring sac roe fisheries as a reliable source of income. It is not any fisherman's primary fishery but rather a fishery of short duration prior to the salmon purse seine seasons in which he utilizes his salmon vessel and crew with only a special net required." Under these circumstances, the CFEC found that the income dependence standard was not a valid measure of the economic dependence of a fisherman on the fishery. Our review of the record leads to the conclusion that the CFEC's decision not to include consistency of participation and income dependence as factors in determining hardship, was not an expression of whim, but rather an exercise of judgment. As such, we find there was no abuse of discretion. V. DID THE CFEC ERR IN FAILING TO SET AN OPTIMUM NUMBER OF PERMITS FOR THIS FISHERY WHILE PERMIT APPLICATIONS WERE PENDING? Alaska Statute 16.43.290 provides: Optimum number of entry permits. Following the issuance of entry permits under AS 16.43.270, the commission shall establish the optimum number of entry permits for each fishery.... The CFEC has not yet established an optimum number for the fishery. Johns argues that under the circumstances of this case, the CFEC was required to set an optimum number prior to a final adjudication of all permit applications. Johns suggests that the Limited Entry Act's mandate that the regulation of entry be "without unjust discrimination," AS 16.43.010(a), requires the CFEC to establish the optimum number before final adjudication of permits in cases where the optimum number will exceed the established maximum number. In addition, Johns argues that maintaining the fishery based upon the original maximum number established by the CFEC, in the face of dramatically improved conditions in the fishery, is unconstitutional. The CFEC, on the other hand, argues that it cannot set an optimum number for the fishery until all applications are finally adjudicated. If the optimum exceeds the number of outstanding permits, the CFEC is required to sell additional permits at fair market value. AS 16.43.330. The CFEC argues that no one who is entitled to a permit under the initial issuance guidelines of AS 16.43.270 could be required to buy a permit under the sale provisions of AS 16.43.330. Thus, the CFEC concludes that it is necessary to wait until final adjudication of initial permit applications before embarking on the optimum number process. The trial court found that the reasonable interpretation of the phrase "following the issuance of entry permits" in AS 16.43.290 refers to "the original issuance and not the disposition of the last permit." The court nonetheless concluded that AS 16.43.290 did not provide for a more definite time frame, and that the CFEC had discretion as to whether' to wait until final adjudication of all applications was complete. The court noted that, in some circumstances, it would be unreasonable for the CFEC to wait until final adjudication was complete before embarking on the optimum number process, but, under the circumstances of this case, it was reasonable. 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 guarantee open fisheries. 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. Ostrosky, 667 P.2d at 1191. The optimum number provision of the Limited Entry Act is the mechanism by which limited entry is meant to be restricted to its constitutional purposes. Without this mechanism, limited entry has the potential to be a system which has the effect of creating an exclusive fishery to ensure the wealth of permit holders and permit values, while exceeding the constitutional purposes of limited entry. Because this risk of unconstitutionality exists, the CFEC should not delay in embarking on the optimum number process, except where there is a substantial reason for doing so. We find the fact that there are applications which are not finally adjudicated for the fishery does not justify the CFEC's delay in initiating the optimum number process. The CFEC should determine the optimum number for this fishery. If the optimum is greater than the number of permits issued plus the number of applications pending, the excess should be sold under the provisions of AS 16.43.330. Similarly, as to those pending applications which are finally determined adversely to the applicant, additional sales should be held. For this reason, we REMAND this case to the superior court with instructions to order the CFEC to begin the optimum number process. In all other respects the decision of the superior court is AFFIRMED. . The Attorney General, however, has issued an opinion indicating this portion of the Act violates the state constitutional prohibition against dedicated funds. 1985 Op. Att'y Gen. No. 2 (May 23). . A requirement that an agency he judged on a single, comprehensive, detailed justification for its decision, prepared at the time when it promulgates a rule, would have several potentially beneficial effects. It would force the various subunits within the agency to pursue their differences on questions of fact, interpretation or policy until they could be resolved. It would force the agency to choose between alternative data, theories and metho dologies and create a coherent case upon which scrutiny by the courts can be focused. Ship Creek, 685 P.2d at 718, citing, Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 73 n. 3. .We indicated in Ship Creek, 685 P.2d at 719, that a detailed and comprehensive statutory scheme was a legitimate basis for not implying a decisional document requirement. . The same rule applies to other important non-adjudicative administrative decisions. Moore v. State, 553 P.2d 8 (Alaska 1976) (oil lease sale). . Johns also argues that the CFEC violated certain provisions of the Administrative Procedure Act (AS 44.62.010-.650) and Open Meetings Act (AS 44.62.310-312) when it established the maximum number for the fishery. Having reviewed the record, we agree with the trial court's conclusion that there were no such violations. . The Limited Entry Act requires the CFEC to set the maximum number for a distressed fishery at the "highest number of units of gear fished in that fishery during any one of the four years immediately preceding January 1, 1973." AS 16.43.240(a). There are two distinctions between fisheries designated as distressed and those designated as non-distressed. First, a fishery can be designated as non-distressed and limited even though it may tolerate more units of gear than the historic high. In contrast, a distressed fishery, by definition, cannot. AS 16.43.230. Second, a distressed fishery is one which is overgeared as of January 1, 1973. A non-distressed fishery has no such time constraint. Neither of these distinctions supports the conclusion that the legislature could have reasonably intended that the maximum number for a non-distressed fishery be lower than the historic high. We therefore find that the CFEC is obligated to set the maximum number, for a non-distressed fishery, at a level which is no lower than the highest number of units of gear fished in the four years prior to the limitation of the particular fishery. .We have sometimes noted two other purposes: avoiding unjust discrimination and administrative convenience. Apokedak, 606 P.2d at 1265. These are objectives which should accompany a limited entry program but they are not the reasons for the program. . Johns also argues that the maximum number originally set by the CFEC has become unconstitutional because of changed circumstances. This issue is discussed in section V below. . Article I, section 1 of the Alaska Constitution provides: This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State. . Article VIII, section 17 of the Alaska 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 law or regulation. . Article VIII, section 15 of the Alaska Constitution provides: No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State. This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State. . These are article VIII, section 3 of the Alaska Constitution which states: "Whenever occurring in the natural state, fish, wildlife, and waters are reserved to the people for common use," and the first sentence of article VIII, section 15, which states: "No exclusive right to special privilege of fishery shall be created or authorized in the natural waters of the State."

10395682

Emanuel CHARLIAGA, Appellant, v. STATE of Alaska, Appellee

Charliaga v. State

1988-08-05

No. A-1657

135

137

758 P.2d 135

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Emanuel CHARLIAGA, Appellant, v. STATE of Alaska, Appellee.

Emanuel CHARLIAGA, Appellant, v. STATE of Alaska, Appellee. No. A-1657. Court of Appeals of Alaska. Aug. 5, 1988. Michael J. Wall, Asst. Public Defender, Kodiak, and Dana Fabe, Public Defender, Anchorage, for appellant. David Mannheimer, 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.

1223

7441

OPINION COATS, Judge. Emanuel Charliaga was convicted, following a jury trial, of sexual assault in the first degree. AS 11.41.410(a)(1). Charlia-ga appeals to this court, arguing that his conviction should be reversed because Superior Court Judge Rene J. Gonzalez erroneously determined that he had voluntarily absented himself from portions of his trial. We remand to the trial court for a hearing on this issue. Charliaga's trial began in Kodiak on February 19, 1986, before Judge Gonzalez. The case went to the jury around 1:00 p.m. on February 20, 1986. The parties stipulated that it was not necessary to sequester the jury. Charliaga waived his right to be present at playbacks. At 2:35 p.m. the jury sent a note to the judge requesting replays of several witnesses' testimony. The jury also asked to see the trooper's written report. The court responded to these requests in the presence of the state, Charlia-ga, and defense counsel. The court received a second note from the jury around 9:30 p.m. and informed the attorneys. One hour later, both counsel appeared in court, but Charliaga could not be located. Under the terms of Charliaga's release, he was to remain at all times with either his attorney or his third party custodian, Mrs. Valley, his aunt. Both counsel expressed concerns about proceeding in Charliaga's absence. The court found that Charliaga had voluntarily waived his presence for the purpose of addressing the two jury questions. Defense counsel informed the court that he had no objection to responding to the jury notes, but that he disagreed with the court's finding of "voluntary absence." In the first note, the jury requested a written transcript of the complaining witness' testimony, despite the fact that they had already listened to the playback of her testimony three times. The state and defense counsel agreed that because there was no written transcript available, and because the tape recording was available, the jury would not be able to obtain a transcript. The court sent a note to the jury, stating that the court was unable to provide a written transcript, but that the court could replay this testimony. The second jury note indicated that a person on the jury panel had seen the defendant and the victim together the previous night at the American Legion Hall's bingo game. The jury wished to be advised how this contact affected the case. The prosecutor felt that the tone of the note indicated prejudice against the state, hence, she contemplated requesting a mistrial. Defense counsel suggested that any problems could be cured by an instruction to disregard the incident while deliberating. The court informed the jury that the case was to be decided solely on the evidence presented at trial. After sending these responses to the jury, the state expressed concern about the defendant's absence, especially in view of the defendant's apparent violation of the "no contact" order. Judge Gonzales gave defense counsel until 11:30 p.m. to locate Charliaga and bring him into court or he would issue a bench warrant. The court resumed session at 12:50 a.m. Defense counsel indicated that he had not seen Charliaga since around 9:00 p.m., and that neither he nor the third party custodian knew where Charliaga was. The court found that Charliaga was in violation of the conditions of release. Judge Gonzales had instructed Charliaga to remain in contact with his attorney and to be present at all proceedings. Judge Gonzalez concluded that Charliaga's failure to be present was voluntary. He therefore had the jury return the verdict in the defendant's absence. After the jury returned the guilty verdict, defense counsel polled the jury. Judge Gonzalez then issued a bench warrant for Charliaga and released the jury. Charliaga was arrested and brought before Judge Gonzalez later that morning. Judge Gonzalez set a date for sentencing. Charliaga was never asked for nor did he ever offer any explanation for his absence. The resolution of this case is governed by Alaska Criminal Rule 38 and Lee v. State, 509 P.2d 1088 (Alaska 1973). Criminal Rule 38 provides in pertinent part: (a) Presence: required. The defendant shall be present at the arraignment, at the preliminary hearing, at the time of plea, at the omnibus hearing, and at every stage of the trial, including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided in this rule. (b) Continued presence not required. The further progress of the trial to and including the return of the verdict shall not be prevented whenever a defendant, initially present: (1) Voluntarily absents himself after the trial has commenced\f\ (Emphasis added). In Lee, the court allowed the jury to return a verdict in the defendant's absence. The court had waited approximately one hour, and the bailiff had attempted to contact the defendant by telephone. The bailiff never contacted Lee directly at the telephone number which Lee provided, but following the second call, the bailiff was told by an unidentified person that Lee was on his way to the courthouse. Lee arrived at the courthouse shortly after the jury returned the verdict. The supreme court reversed Lee's conviction, holding that the record did not show that Lee's absence at the time the jury returned its verdict was voluntary. In Lee, the Alaska Supreme Court noted the general view that defendants who abscond or willfully make themselves unavailable after the trial has begun are voluntarily absent and, therefore, have waived the right to be present. 509 P.2d at 1090. The supreme court also noted that courts are reluctant to find an absence to be voluntary in the absence of clear- evidence on the record that the defendant knew of the proceedings and exercised a decision to stay away. Id. (citing Cureton v. United States, 396 F.2d 671, 676 (D.C.Cir.1968) (remanding because the record did not clearly establish that the defendant was aware of the proceedings taking place, that he was aware of his right to be present, and that he had no sound reason for remaining away)). Charliaga's case appears to us to be similar to Cureton, which the Alaska Supreme Court referred to in Lee. The record here is not sufficient for us to conclude, as a matter of law, that Charliaga's absence from his trial was voluntary. Accordingly, we remand to the trial court and direct the trial court to hold a hearing on this issue. The trial court shall make findings of fact and conclusions of law. In the event that the trial court finds that Charlia-ga's absence from trial was not voluntary, the judgment should be set aside. Otherwise, the judgment will remain in effect, subject to the defendant's right to appeal. The conviction is REMANDED. . We conclude that Charliaga should have the burden of showing that his failure to be present was involuntary. These facts appear to be particularly within the defendant's knowledge and, therefore, it seems appropriate that he should have the burden of proof.

10547369

Marilyn CASEY, Appellant, v. STATE of Alaska, Appellee

Casey v. State

1973-04-27

No. 1701

285

286

509 P.2d 285

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

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

Marilyn CASEY, Appellant, v. STATE of Alaska, Appellee.

Marilyn CASEY, Appellant, v. STATE of Alaska, Appellee. No. 1701. Supreme Court of Alaska. April 27, 1973. William H. Fuld, Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, Alaska, for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

827

5176

OPINION BOOCHEVER, Justice. Marilyn Casey was found guilty of unlawful possession of a narcotic drug, nu-morphan, in violation of AS 17.10.010. This appeal raises issues as to the sufficiency of the evidence, unconstitutional vagueness of the statute and the legality of the sentence prohibiting parole. Since we find that resolution of the first issue is dispositive of this appeal, we do not reach the other questions presented. Casey presented to a pharmacist a prescription, purportedly signed by F. J. Phil lips, M. D., for a drug, numorphan. On checking with the doctor, the druggist was informed that Dr. Phillips had not written the prescription. The pharmacist then notified the police. Casey was indicted for passing a forged instrument in violation of AS 11.25.010 as well as for the offense of possession of a narcotic, but she was acquitted on the forgery charge. This appeal has been taken from her conviction of the charge of possession of a narcotic drug in violation of AS 17.10.010. AS 17.10.010 makes possession of a narcotic drug, except as authorized in the chapter, unlawful. "[N] arco tic drugs" are defined in AS 17.10.230(13) as meaning: coca leaves, opium, isonipe-caine, amidone, isoamidone, ketobemi-done, and every other substance having similar physiological effects: . (Emphasis added.) The case was tried on the theory that nu-morphan is a drug having "similar physiological effects" to the other drugs named in AS 17.10.230(13). The testimony touching on the physiological effects of numorphan was sketchy and superficial. Doctor Phillips, who had previously prescribed the drug for Casey, stated that he was "somewhat familiar" with numorphan, that it is an analgesic with tranquilizing effects, and that he had ceased to prescribe it because it is "very habit forming". A pharmacist testified that the drug was an opiate or narcotic and that it was a "synthetic derivative. It's not a derivative from the opium poppy." Even if we were to assume that the fragmentary testimony of the doctor constituted an adequate description of the "physiological effects" of numorphan, we are left with a complete absence of testimony as to the physiological effects of the drugs specifically named in AS 17.10.230 (13). There was no testimony as to the effects of opium or the other named drugs, and thus there was no basis for the court to find that numorphan had "similar physiological effects" to any of those drugs. There being a complete absence of proof as to this essential element of the offense charged, we have no choice but to reverse the conviction. Reversed. . AS 17.10.010 specifies: Acts prohibited. It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, give, barter, supply or distribute in any manner, or compound any narcotic drug except as authorized in this chapter. . According to L. Goodman and A. Gilman, the Pharmacological Basis of Therapeutics, 19-25 (4th ed. 1970), each of the drugs named has a wide variety of physical effects varying in nature dependent upon such factors as body weight, age, sex, manner and time of administration, tolerance, genetic factors, etc. More than 23 basically different effects are ascribed to the listed drugs, with all of these effects subject to numerous variances. Some of the effects are similar to those of such commonly used substances as alcohol, tobacco, aspirin and coffee. Thus, if we were to reach the issue of whether the phrase "having similar physiological effects" is unconstitutionally vague, we would have grave doubts as to its constitutionality. In Harris v. State, 457 P.2d 638, 647 (Alaska 1969), we stated: But where the conduct to be prohibited by a criminal statute is capable of objective definition by language descriptive of precise physical acts and events, it simply will not do to use language so ambiguous as to be capable of expansion or contraction at the whim of the reader. See also Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972). . AS 17.10.230(13) specifically includes "opium" within the definition of "narcotic drugs". Despite the testimony that numorphan was a "synthetic" derivative of opium, no attempt was made to bring the case under the provisions of AS 17.-10.230(11) defining "opium" as including "any compound, manufacture, salt, derivative, mixture, or preparation of opium". By contrast, in Oregon v. Livingston, 2 Or.App. 587, 469 P.2d 632, 634 (1970), a police chemist with a bachelor's degree in chemistry and 21 years' experience in police laboratory work testified that numorphan was derived from thebaine, one of the constituent elements of opium. Thus, in that case it was established that numorphan came within the definition of "opium".

10395524

Moses GABRIELOFF, Appellant, v. STATE of Alaska, Appellee

Gabrieloff v. State

1988-07-29

No. A-2214

128

130

758 P.2d 128

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Moses GABRIELOFF, Appellant, v. STATE of Alaska, Appellee.

Moses GABRIELOFF, Appellant, v. STATE of Alaska, Appellee. No. A-2214. Court of Appeals of Alaska. July 29, 1988. Donald L. Surgeon, Asst. Public Defender, Bethel, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.

1024

6288

OPINION Before BRYNER, C.J., COATS and SINGLETON, JJ. SINGLETON, Judge. Moses Gabrieloff pled no contest and was convicted of one count of sexual assault in the first degree, an unclassified felony. AS 11.41.410(a)(1). Gabrieloff, a first felony offender, was subject to an eight-year presumptive term. AS 12.55.- 125(i)(l). No aggravating or mitigating factors were asserted. See AS 12.55.155. The trial court did not find that imposition of the sentence resulted in manifest injustice and thus did not refer the case to the three-judge panel. AS 12.55.165-.175. See Lloyd v. State, 672 P.2d 152 (Alaska App.1983). After hearing from the parties, the court imposed the presumptive term. Ga-brieloff appealed, contending that the sentence was excessive and that the court erred in not transferring the proceeding to the three-judge panel. We affirmed. Gabrieloff v. State, Memorandum Opinion and Judgment No. 944 (Alaska App., October 9, 1985). We reasoned that the prolonged nature of the assault, the substantial injury suffered by the victim, and Gabrieloffs prior misdemeanor record for assault and disorderly conduct supported the trial court's conclusion that a sentence of eight years was not manifestly unjust. Id. at 2. In April 1987, Gabrieloff sought sentence modification, pursuant to Alaska Rule of Criminal Procedure 35(b). Gabrieloff argued that the trial court had initially noted that if presumptive sentencing had not applied, it would have sentenced him to a period of incarceration with alcohol treatment to be followed by a period of probation. In Gabrieloffs view, he has served a substantial period of time, has completed alcohol treatment, and should be released on probation. The state opposed the motion, arguing that the trial court had no authority to modify a presumptive sentence in the absence of mitigating factors or a basis for referral to the three-judge panel. The case was assigned to Superior Court Judge Gail Roy Fraties who denied the motion in a written decision. Judge Fraties concluded: The court has read and considered defendant's motion and memorandum for sentence modification, together with the state's opposition. The defendant offers no authority for his theory that a presumptive term may be reduced by operation of Criminal Rule 35(b), other than to allege that a presumptive term (when adjusted if necessary, for aggravators and mitigators) somehow differs from a minimum sentence. In the court's view, when Rule 35(b) provides that the limitation on its operation is that the modification cannot fall below the "minimum required by law," that minimum, in the case of a presumptive sentence is the adjusted term. (AS 12.55.125©). Gabrieloff appeals, basing his arguments on differences between Criminal Rule 35(b) and the statute which led to its promulgation. Former AS 12.55.088 provides in relevant part: (a) The court may modify or reduce a sentence at any time during a term of imprisonment if it finds conditions or circumstances have changed since the original sentencing hearing such that the purpose of the original sentence is not being fulfilled. (b) The sentencing court may not be required to entertain a second or successive motion for similar relief brought under (a) of this section on behalf of the same prisoner. (c) No sentence may be reduced or modified so as to result in a term of imprisonment which is less than the minimum or presumptive sentence required by law for the original sentence. In contrast, Criminal Rule 35©) provides: The court may modify or reduce a sentence at any time during a term of imprisonment if it finds that conditions or circumstances have changed since the original sentencing hearing such that the purposes of the original sentence are not being fulfilled. (1) The sentencing court is not required to entertain a second or successive motion for similar relief brought under this paragraph on behalf of the same petitioner. (2) No sentence may be reduced or modified so as to result in a term of imprisonment which is less than the minimum required by law. Gabrieloff notes that the statute precludes reduction of a sentence below the minimum or presumptive term required by law for the original sentence. In contrast, the rule only precludes reduction below the minimum term. He argues, therefore, that a trial court has authority under the rule to reduce a sentence so long as the reduction does not go below the minimum. He points out that there is no minimum sentence for sexual assault in the first degree. Consequently, he contends, the trial court should have considered his potential for rehabilitation, his successful completion of the alcohol program, together with the support of his friends and family, and lowered his sentence. It is not clear that Criminal Rule 35(b) or the statute which led led to its enactment were intended to permit a trial court to modify a sentence at any time if convinced that an incarcerated person has been rehabilitated. It is not necessary for us to decide that issue in this case. We are satisfied that the trial court has no power to impose a sentence, pursuant to Criminal Rule 35(b), that he or she would not have been permitted to impose at initial sentencing. Because the trial court's power to initially sentence is subject to presumptive sentencing, it necessarily follows that in the absence of mitigating factors, or a basis for a referral to the three-judge panel, the court is obligated to impose the presumptive term. Such a sentence is not subject to modification thereafter pursuant to Criminal Rule 35(b). The judgment of the superior court is AFFIRMED. . Gabrieloff did not ask the trial court to consider new mitigating factors or new reasons for possible referral to the three-judge panel in connection with his application for relief pursuant to Criminal Rule 35(b). We express no opinion regarding the availability of this rule for those purposes.

10547297

STATE of Alaska, Appellant, v. William A. STANLEY, Appellee; William A. STANLEY, Cross-Appellant, v. STATE of Alaska, Cross-Appellee

State v. Stanley

1973-04-27

Nos. 1598, 1601

279

280

509 P.2d 279

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

STATE of Alaska, Appellant, v. William A. STANLEY, Appellee. William A. STANLEY, Cross-Appellant, v. STATE of Alaska, Cross-Appellee.

STATE of Alaska, Appellant, v. William A. STANLEY, Appellee. William A. STANLEY, Cross-Appellant, v. STATE of Alaska, Cross-Appellee. Nos. 1598, 1601. Supreme Court of Alaska. April 27, 1973. John E. Havelock, Atty. Gen., Juneau, John A. Reeder, Jr., B. Richard Edwards, Asst. Attys. Gen., W. C. Arnold, Anchorage, for appellant and cross-appellee. Donna C. Willard, of Walton & Willard, Edgar Paul Boyko, of Edgar Paul Boyko & Associates, Anchorage, for appellee and cross-appellant.

616

3800

OPINION ON PETITION FOR REHEARING The State raises three points on its Petition for Rehearing. The first concerns the personal liability of the defendant, Short. The State takes the position that a criminal law enforcement official of the Department of Fish and Game should not be held personally liable for negligent conduct performed while exercising his duties. As authority the State cites Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); and Wright v. White, 166 Or. 136, 110 P.2d 948 (1941). The Gregoire case and the Wright case deal with the exercise of judicial functions. In Gregoire, officials of the United States government authorized prosecution of Gre-goire on the grounds that he was an enemy alien. The court discussed the absolute privilege of judges and prosecuting attorneys. The same principle was applied to other executive officials. Similarly, in Wright a question arose as to the liability of officials of the National Guard for ordering a court martial of Wright. Barr v. Matteo, supra, decided by a divided United States Supreme Court, involved a question as to the privilege of the Acting Director of the Office of Rent Stabilization to issue a press release in which he gave reasons why he intended to suspend two other officers of the agency. All three cases are readily distinguishable on their facts from the subject one. We did not rest Short's possible liability upon his decision whether or not to seize the vessel, the Lynn Kendall. We stated: While a public employee, such as Short, may not be held liable for acts done in line of official duty involving a mistake in judgment or discretion, or because of erroneous interpretation and application of law, it is well established that the immunity from suit does not apply to the negligent performance of acts not involving such discretionary judgment-policy decisions. (Footnotes omitted.) The State further contends that because the case was remanded for further findings as to whether Short was negligent and whether such negligence was a proximate cause of the damage to the vessel, the decision with reference to the negligence of the State should be reversed as lacking establishment of proximate cause. The opinion, 506 P.2d 1284, referred to various acts of negligence on the part of both Short and Newburn which formed a basis for the trial court's finding that negligent acts of State employees proximately caused the sinking. The matter was remanded to the trial court as it is not possible for us to otherwise ascertain whether the court regarded Short's negligence, Newburn's negligence, or both of their negligent acts as such proximate cause. In that regard the remand should be limited to ascertaining whether Short's negligence was a proximate cause of the damage to the vessel, as the findings of the court below have already disposed of the issue of negligence on Short's part. Thirdly, the petition alleges that "[t]he opinion cast the burden on the bailee to absolve itself of negligence rather than going forward with the evidence to the extent he is able." To the contrary, the opinion stated that the ultimate "burden of proving specific negligence is placed upon the plaintiff-bailor." Accordingly, the Petition for Rehearing is denied.

10393897

William McNEIL, Appellant, v. STATE of Alaska, Appellee

McNeil v. State

1990-02-23

No. A-2988

1036

1037

787 P.2d 1036

787

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

William McNEIL, Appellant, v. STATE of Alaska, Appellee.

William McNEIL, Appellant, v. STATE of Alaska, Appellee. No. A-2988. Court of Appeals of Alaska. Feb. 23, 1990. Jeffery D. Mahlen, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. R. Bruce Roberts, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

470

2956

OPINION BRYNER, Chief Judge. William McNeil was convicted after pleading no contest to a charge of driving while his license was suspended (DWLS). McNeil reserved the right to appeal the district court's denial of a motion to suppress evidence in which he argued his arrest violated the Posse Comitatus Act. We affirm. On February 14, 1989, Sergeant Jesus Perusquia, a military police officer, was on duty at the Fort Richardson military reservation when he saw McNeil driving in an erratic manner on a portion of the Glenn Highway which crosses military property. Perusquia suspected that McNeil might be intoxicated and stopped him. After speaking with McNeil, Perusquia decided that McNeil was not intoxicated. Perusquia ran a computer cheek on McNeil's driver's license, however, and learned that it was suspended. He then contacted the Alaska State Troopers, who arrested McNeil for DWLS. McNeil argued below, and he contends on appeal, that Perusquia violated the Posse Comitatus Act, 18 U.S.C. § 1385 (1988): Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. It is well settled, however, that the Posse Comitatus Act is not violated when military officers pursue a legitimate and independent military purpose. Harker v. State, 663 P.2d 932, 935-37 (Alaska 1983); Moon v. State, 785 P.2d 45 (Alaska App.1990); Anchorage v. King, 754 P.2d 283, 285-86 (Alaska App.1988). In this case, Perusquia had a right to patrol the portion of the Glenn Highway on which McNeil was travelling. He stopped McNeil in order to protect motorists travelling on military property from the danger of intoxicated drivers. Accordingly, Perusquia acted with legitimate military purpose. See King, 754 P.2d at 286. Moreover, Perusq-uia's decision to stop McNeil was not prompted by a request from the police. Thus, there was no willful use of military personnel by civilian law enforcement authorities. We find no violation of the Posse Comitatus Act. McNeil's conviction is AFFIRMED. . The record establishes that the Glenn Highway crosses the Fort Richardson military reservation along an easement granted to the State of Alaska by the Secretary of the Army. The express terms of the easement authorize both civilian and military personnel to patrol the portion of the highway that crosses the military reservation.

10380937

Charles CORTAY, Appellant, v. SILVER BAY LOGGING, Alaska Timber Insurance Exchange, and Alaska Workers' Compensation Board, Appellees

Cortay v. Silver Bay Logging

1990-02-09

No. S-3014

103

109

787 P.2d 103

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

Charles CORTAY, Appellant, v. SILVER BAY LOGGING, Alaska Timber Insurance Exchange, and Alaska Workers’ Compensation Board, Appellees.

Charles CORTAY, Appellant, v. SILVER BAY LOGGING, Alaska Timber Insurance Exchange, and Alaska Workers’ Compensation Board, Appellees. No. S-3014. Supreme Court of Alaska. Feb. 9, 1990. Patrick E. Murphy, Batchelor, Murphy & Brinkman, Juneau, for appellant. Paul M. Hoffman, Robertson, Monagle & Eastaugh, P.C., Juneau, for appellees Silver Bay Logging and Alaska Timber Ins. Exchange. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

3757

22711

OPINION MOORE, Justice. Charles Cortay appeals the judgment of the superior court affirming the Alaska Workers' Compensation Board ("Board") order denying him temporary total disabili ty ("TTD") benefits for lost wages due to a work-related injury. The Board denied Cortay benefits on the grounds that Cortay was able to work and that he left work in order to care for his wife who also had suffered a work-related injury. For the reasons set forth below, we hold that the Board's finding that Cortay was able to work despite his work-related injury is not supported by substantial evidence. This holding, however, does not dispose of this appeal since the Board also found that Cor-tay was unavailable to work for reasons independent of his injury. We are left with the question whether the Board erred in denying Cortay TTD benefits for a disabling work-related injury because Cortay used the time during which he was disabled to care for his wife. We believe that a disabled employee should not be denied benefits because he chooses to engage in an activity that also would render him unavailable for work. Therefore, we reverse the Board's decision and remand the case for a determination of the proper amount of TTD benefits from May 6, 1987, the date time-loss was authorized, to the time Cor-tay's back condition no longer rendered him unable to work. I. Charles Cortay was employed by the Silver Bay Logging Company ("Silver Bay") as the head cook at the company's logging camp in Cube Cove, Alaska. Cortay worked seven days a week, fourteen hours a day during the logging season. On July 19, 1986, Cortay injured his back while unloading four to five thousand pounds of goods. After being examined by Dr. Hut-tenlocher in Juneau and receiving pills for pain, Cortay returned to work at the logging camp. Although Cortay did not feel fully recovered from the July 1986 injury, he returned to the camp as head cook in February 1987. On March 13, 1987, Cortay suffered the injury which is the subject of this case. Cortay slipped on an icy board and fell seven or eight feet into some rocks below. Cortay landed on his right heel which struck a sharp rock. On April 2, 1987, Cortay saw Dr. Ceder concerning pain in his right heel and pain in his mid-back that developed five days after the fall. Dr. Ceder found degenerative changes in Cortay's back and diagnosed a contusion of the right heel and a back strain. Dr. Ceder released Cortay for work with "lifting and walking to tolerance." Cortay returned to work and continued his duties as head cook even though he was in substantial pain. During this period, Cortay received some assistance in lifting heavy items, and another worker was assigned to the kitchen a couple of afternoons a week. There is no evidence that Cortay's hours were reduced after the accident. On April 18, 1987, Pearl Cortay, Cortay's wife, fractured her ankle while working at the logging camp. At his employer's instructions, Cortay accompanied his wife to Juneau to seek medical care. Soon thereafter, Cortay returned to the logging camp and resumed work for four days. On April 24, 1987, Cortay informed Silver Bay's owner, Dick Buehler, that he would need to take his wife to his permanent home in Cathlamet, Washington. Cortay testified that he intended to return to work and that Buehler specifically asked Cortay to call him in a few weeks to inform him of a time frame for his return. While in Washington, Cortay saw a chiropractor, Dr. Finley, about his continuing pain. In his report of May 6, 1987, Dr. Finley diagnosed various injuries to Cor-tay's back and foot. Dr. Finley recommended treatment for three to four months and authorized time loss from May 6, 1987 until further advised. Cortay then informed Glenn Van Treece, the office manager at Silver Bay, of Dr. Finley's conclusion that he is not released to go back to work. At the request of Alaska Timber Exchange, Cortay saw Dr. Edward A. Gros-senbacher, an orthopedic surgeon, for an independent examination. In his report of July 8, 1987, Dr. Grossenbacher made several diagnoses including a lumbar strain in Cortay's back aggravated by degenerative changes of the lumbar spine. Dr. Grossen-bacher concluded: "The patient's inability to work at this time would be based on the patient's injury 13 March 1987." On August 13, 1987, the Board held a hearing in this case. Cortay v. Silver Bay Logging and Alaska Timber Ins. Exch., No. 704308 (AWCB filed March 24, 1987). In its Decision and Order, the Board denied TTD benefits to Cortay on the basis of its finding that "[ejmployee was able to work after his injury and that he discontinued work to care for his wife." The Board also awarded attorney's fees to Cortay for services rendered on the issue of medical compensation on which he prevailed at the statutory minimum rate under AS 23.30.145(a). Cortay appealed the Board's order denying him TTD benefits and the order awarding him only statutory minimum attorney's fees to the superior court. The superior court, Judge Duane Craske, affirmed the Board's denial of TTD benefits, but reversed the Board's order with respect to attorney's fees and remanded the case to the Board directing it to award Cortay $1,215.50 in attorney's fees for services performed prior to the Board hearing (computed at $55 per hour). Cortay appeals. II. In reviewing findings of fact by the Board, we apply the substantial evidence standard. [T]he court's task when reviewing a Board determination is not to reweigh the evidence presented to the Board, but to determine whether there is substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the Board's conclusion.... The Board's factual findings, however, may be set aside if the reviewing court cannot conscientiously find that the evidence supporting the decision is substantial when viewed in light of the entire record, including the evidence opposed to the Board's decision. Fairbanks North Star Borough v. Rogers & Babler, 747 P.2d 528, 533-34 (Alaska 1987) (citations omitted). Cortay's claim for TTD benefits is governed under AS 23.30.185. This statute provides that "[i]n case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability." The term "disability" is specifically defined in the Workers' Compensation Act ("Act") and therefore shall be construed in light of its statutory definition. Estate of Ensley v. Anglo Alaska Constr. Inc., 773 P.2d 955, 957 (Alaska 1989). The Act defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.-30.265(10). We have interpreted this statutory definition as meaning that disability depends on earning capacity: "The concept of disability compensation rests on the premise that the primary consideration is not medical impairment as such, but rather loss of earning capacity related to that impairment." Estate of Ensley, 773 P.2d at 957 (quoting Vetter v. Alaska Workmen's Compensation Bd., 524 P.2d 264, 266 (Alaska 1974)). Based on this definition, we hold that the Board's finding that Cortay was able to work in spite of his March 13, 1987 injury is not supported by substantial evidence. The Board provides three grounds for its factual conclusion that Cortay was able to work despite his injury. First, the Board states that it relied on "the fact that [Cortay] worked for more than five and one half weeks after his fall." That Cortay was able to work through his pain from March 13 until April 24 is not substantial evidence for the conclusion that he was unable to work after May 6 when Dr. Finley diagnosed Cortay's injuries as rendering him unable to work and authorized time loss. Cortay was not made aware of the severity of his back injuries until he saw Dr. Finley. Second, the Board states that in finding Cortay able to work it relied on "the fact that he discontinued work only when his wife was released from the hospital." This fact also has no bearing on Cortay's ability to work. The definition of "disability" in AS 23.30.265(10) says nothing about an employee's motivation for leaving work. The issue is whether Cortay was able to work despite his injury, not why Cortay decided to take leave. The only relevant evidence on the issue of Cortay's ability to work that the Board relied on was the medical testimony of Dr. Grossenbacher and Dr. Finley. On the basis of this evidence, the Board concluded that Cortay was able to work. Our review of the medical evidence indicates that there is no objective evidence that Employee was unable to work. The physician's opinions about Employee's inability to work are based upon Employee's subjective complaints. Initially, Employee complained of a heel injury, but it did not prevent him from working. Dr. Grossenbacher testified that the heel injury did not prevent Employee from working. We have no doubt that Employee suffers from back pain as a result of his degenerative disc disease, arthritis, congenital defect and a strain when he fell. The back pain did not render Employee unable to work, however, and Employee is not entitled to TTD compensation. (Emphasis added). The Board's conclusion that Cortay's back pain did not render him unable to work is not supported by substantial evidence in the record. The only medical evidence in this case was that presented by Dr. Grossenbacher and Dr. Finley. Both doctors concluded that Cortay's March 13, 1987 injury aggravated an underlying degenerative back condition. Dr. Finley authorized time loss from May 6, 1987. Dr. Grossenbacher stated in his report that "[a]t this time, the patient is not medically stationary or orthopedically stable." Referring to Cortay's statement that under Dr. Finley's care he could return to work in three to four months, Dr. Grossenbacher stated: "I am unaware of any expediencies to improve his return to work on an earlier basis unless there is modified employment available to him." The Board ignores the two doctors' consistent conclusions that Cortay was unable to work and states simply that their opinions are insubstantial because they "are based upon Employee's subjective complaints." Even if lack of objective evidence was a sound basis for finding that Cortay was unable to work, the Board is wrong in saying that there is no objective medical evidence. At his deposition, Dr. Finley was asked "[wjhat objective evidences of problem did you find with Mr. Cortay?" Dr. Finley responded as follows: A. Well, when he came in he could hardly walk, come limping in. Objective finding, you mean physical findings during the course of the examination; is that what you mean? Q. Yes. A. Well, pushing on his heel elicited a marked pain response and he had limitation in his motion in his back with pain responses evident from trying to execute maneuvers, and then the digital compression of the spinous processes or the spinal structures and the adjacent tissue would elicit pain responses from the patient. In affirming the Board's conclusion that Cortay was not eligible for TTD benefits, the superior court ignored the Board's reasoning altogether. Instead, the court found substantial evidence for the Board's finding that Cortay was able to work in an inconsistency between Dr. Finley and Dr. Grossenbacher's medical opinions: The medical evidence in this case is not consistent and uncontradicted. The depositions of the two medical experts, when compared to each other, are found to contain inconsistencies and differing conclusions. Dr. Finley would not release Cortay for work as of May 6, 1987. Yet, Dr. Gross[en]bacher concluded that Cor-tay could work, provided his duties were modified somewhat. (Citations omitted). The court cites the following portion of Dr. Grossenbacher's deposition testimony: Q. If Mr. Cortay's job as a cook could be designed such that he could sit down periodically, he would not have to lift more than 25 pounds occasionally, and if I reported that he could — told you he could do that comfortably, would you release him to that job at this time? A. Yes. Q. Would the most important criteria in that be whether he said he could do it comfortably? A. And safely, I think they're both important. This difference in the doctors' testimony is not substantial evidence for the conclusion that Cortay was able to work. There is no evidence in the record that modified employment consistent with the above hypothetical was offered. Although Cor-tay had some help lifting items and cooking two afternoons a week, such help is clearly an insufficient job modification to allow Cortay to return to work given the long hours and the demanding tasks he is required to perform. Neither the Board's nor the court's conclusion that Cortay was able to work is supported by substantial evidence. The two doctors whose reports are in the record agree that Cortay was unable to work on account of his back injuries. These independent medical opinions overwhelm any inference that Cortay was able to work either from circumstantial evidence relating to his behavior, or from the fact that one of the doctors would have concluded otherwise had modified employment been available when there was no evidence that it was. III. That Cortay was unable to work is not dispositive of the issue whether the Board erred in denying him TTD benefits. As an alternative theory, Silver Bay proposes that this court may uphold the Board's decision even assuming that Cortay was unable to work because of his injury if it finds that Cortay quit work for reasons unrelated to his injury. Silver Bay cites Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264 (Alaska 1974) where this court stated "[i]f a claimant, through voluntary conduct unconnected with his injury, takes himself out of the labor market, there is no compensable disability." 524 P.2d at 266. In Vetter, the Board denied TTD benefits on the ground that Grace Vetter did not want work on account of her husband's negative attitude toward her employment. Id. The court concluded that if this determination was supported by substantial evidence, Vetter's claim for compensation was correctly denied. 524 P.2d at 267. Finding no substantial evidence for the conclusion, the court reversed the Board's decision. 524 P.2d at 268. Silver Bay argues that Cortay quit work to care for his wife. Since this reason is unrelated to Cortay's own injury, Silver Bay concludes that under Vetter, he is not entitled to disability benefits. We conclude that Vetter does not control this case. There is no evidence that Cortay intended to remove himself from the labor market. Cortay took a temporary leave at the acquiescence of his employer to assist his wife's recovery. Cortay expected to return to work for Silver Bay. The issue in this case is whether Cortay should forfeit TTD benefits to which he otherwise would be entitled because he spent the time during which he was unable to work at home caring for his wife. We recently addressed the question whether TTD benefits should be denied to a disabled employee for the time during which he is also unavailable for work for reasons unrelated to work in Estate of Ensley v. Anglo Alaska Construction Inc., 773 P.2d 955 (Alaska 1989). In Estate of Ensley, Ensley suffered a back injury while working on the North Slope. After he left the state to receive treatment, Ensley's doctor concluded that Ensley was unemployable due to his back condition. The doctor also stated that Ensley was unemployable because of an unrelated cancer condition predicted to end his life within three to six months. Ensley then flew to the Bahamas where he underwent cancer treatment from February 10, 1985 through April 18, 1985. 773 P.2d at 956. The Board awarded Ensley TTD benefits only through February 9, 1985 on the ground that his disability was due to his cancer, not his back injury. 773 P.2d at 957. We reversed the Board's decision, concluding that "Ensley is entitled to TTD payments for the period in which his back condition would have prevented him from working regardless of the fact he was also undergoing cancer treatment." Estate of Ensley, 773 P.2d at 959-60. We reasoned that "the remedial policy of the Act is furthered by providing compensation for temporary disabilities even when a concurrent unrelated medical condition has also rendered the worker unable to earn his or her normal wages." 773 P.2d at 959. Today we clarify our holding in Estate of Ensley that TTD benefits cannot be denied to a disabled employee because he or she also may be unavailable for work for other reasons. Though Estate of Ensley concerns unavailability for medical reasons, the rationale for not denying TTD benefits applies to any reason that might render the employee unavailable for work. In a concurrence in a similar case, Justice Boochever explained: I believe that where a worker is disabled from employment because of work connected disability, he should be entitled to utilize the period during which he is necessarily disabled from work to further his education, to take care of any medical treatment or to engage in any similar activity without forfeiting his compensation benefits. Jones v. Alaska Workmen's Compensation Bd., 600 P.2d 738, 741 (Alaska 1979) (Boochever, J., concurring). When a worker is disabled from employment because of a work related injury, he remains disabled whether he is undergoing cancer treatment as in Estate of Ensley or assisting in his wife's recovery as in this case. We therefore hold that Cortay is entitled to TTD benefits for his disabling injury of March 13, 1987 from May 6, 1987, when time-loss was authorized, until Cortay was able to work. IV. Cortay also appeals the superior court's award of $1,215.50 in attorney's fees for services rendered on the issue of medical benefits on which Cortay prevailed on the ground that it is inadequate as a matter of law. Attorney's fees in workers compensation cases are governed by AS 23.30.145. This statute establishes minimum attorney's fees based on the amount of compensation awarded. AS 23.30.145(a). In this case, the Board awarded the statutory minimum. The superior court reversed the Board's decision on attorney's fees on the ground that it was "inadequate as a matter of law." We have interpreted AS 23.30.145 in light of its purpose to ensure that injured workers have competent counsel. In Wise Mechanical Contractors v. Bignell, 718 P.2d 971, 973 (Alaska 1986), we reiterated that "[i]n 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." (citation omitted; emphasis added). We contrasted the purpose of attorney's fees in workers' compensation cases to that in civil cases under Civil Rule 82 "to afford reasonable partial compensation for attorney's fees to the winning civil litigant." Wise, 718 P.2d at 973 (emphasis added). In Wise, we held that a "full fee" is not necessarily limited to an hourly fee if a fee calculated at an hourly rate would not reflect the amount of work expended. Id. We then upheld a $24,520 award under AS 23.30.145(c) for the claimant's attorney's time on the appeal even though it was twice that which the attorney would have received if the fee had been calculated on an hourly basis. 718 P.2d at 975. Applying this analysis to the present case, the superior court erred in not awarding attorney's fees with respect to Cortay's attorney's work on the prevailing medical issues at his actual rate of $110 per hour. Awarding fees at half a lawyer's actual rate is inconsistent with the purpose of awarding full attorney's fees in the workers' compensation scheme. If lawyers could only expect 50% compensation on issues on which they prevail, they will be less likely to take injured workers' claims in the first place. In addition, since we hold that Cortay is entitled to TTD benefits, he is also entitled to full reasonable attorney's fees for services performed with respect to this issue. Attorney's fees for Cortay's appeal to the superior court and to this court are governed under AS 23.30.145(c): "If proceedings are had for review of a compensation or medical and related benefits order before a court, the court may allow or increase an attorney's fees." As a successful worker's compensation claimant on appeal, Cortay is entitled to full reasonable attorney's fees and costs for services rendered on appeal to this court and the superior court. Fairbanks North Star Borough School District v. Crider, 736 P.2d 770, 775 (Alaska 1987). The superior court's judgment affirming the Board's decision denying Cortay TTD benefits and reversing the Board's decision regarding attorney's fees is REVERSED. We REMAND the case to the superior court with directions to reverse the Board's decision and to award Cortay full reasonable attorney's fees for work performed on appeal to the superior court. The superior court should then remand the case to the Board for a determination of the proper amount of compensation calculated from May 6, 1987, the date that time loss was authorized, to the date when Cortay's back condition no longer rendered him unable to work. The superior court also shall direct the Board to award Cortay full reasonable attorney's fees for services rendered with respect to his claim for TTD benefits in an amount not less than the statutory minimum under AS 23.30.145(a). . Cortay only seeks TTD benefits from May 6, 1987. . The Board found only that Cortay "discontinued work to care for his wife." The Board did not find that Cortay terminated work when he left on April 24, 1987. The evidence that Cortay did not intend to terminate his employment as of that date is uncontroverted. . Since Cortay did not terminate his employment, we need not address the "[d]ifferent considerations [that] may be applicable where . an employee terminates employment for non-work related reasons before the onset of any disability." Jones, 600 P.2d at 741 n. 1 (Boochever, J., concurring).

10398058

Andrew C. HORTON, Appellant, v. STATE of Alaska, Appellee

Horton v. State

1988-07-08

No. A-1605

628

633

758 P.2d 628

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Andrew C. HORTON, Appellant, v. STATE of Alaska, Appellee.

Andrew C. HORTON, Appellant, v. STATE of Alaska, Appellee. No. A-1605. Court of Appeals of Alaska. July 8, 1988. Paul E. Malin, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., COATS, J., and KATZ, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2957

18163

OPINION COATS, Judge. Andrew C. Horton was convicted, following a jury trial, of four counts of sexual abuse of a minor in the first degree, AS 11.41.434(a)(2)(B), and two counts of sexual abuse of a minor in the second degree, AS 11.41.436(a)(3)(B). Superior Court Judge Rene J. Gonzalez sentenced Horton, a third felony offender, to the presumptive twenty-five-year sentence on each conviction for sexual abuse of a minor in the first degree, and to the six-year presumptive sentence on each conviction for sexual abuse of a minor in the second degree. Judge Gonzalez imposed these sentences to run concurrently to each other. Thus, Horton faces a twenty-five-year presumptive sentence. Horton appeals his conviction and sentence. FACTUAL BACKGROUND Andrew Horton and his wife Linda were divorced in 1980. After the divorce, Horton had custody of the couple's son, A.H., and his two stepdaughters, D.W. and P.W. D.W. and P.W. were Linda's children from a previous marriage. Horton was charged with engaging in numerous sexual acts with D.W. and P.W. during the summer of 1984. D.W. and P.W. were thirteen and twelve years old, respectively, at the time of these alleged offenses. HORTON'S REQUEST FOR A COURT TRIAL On the morning of trial, Horton tried to waive his right to a jury trial. Horton indicated that he wanted to be tried by Judge Gonzalez, sitting without a jury. The state, however, refused to consent to a court trial. Judge Gonzalez concluded that the language of Alaska Criminal Rule 23(a) required the state's consent for a court trial. Horton was therefore tried by a jury. Horton argues on appeal that Judge Gonzalez erred in refusing to grant his request for a court trial. He argues that Judge Gonzalez had discretion to grant a court trial under Criminal Rule 53, which allows the court to relax the criminal rules, and that Judge Gonzalez erred in not recognizing that he had discretion to order a court trial. See Cano v. Anchorage, 627 P.2d 660, 664 (Alaska App.1981) (to properly exercise discretion the court must recognize the alternatives available). Criminal Rule 23(a) provides: Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state. The rule seems to provide that the state must consent before the defendant may have a court trial. Furthermore, Federal Rule of Criminal Procedure 23(a) is essentially identical to the Alaska rule. The constitutionality of the federal rule was upheld in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The Singer court concluded that there was no constitutional impediment to requiring the defendant to have a jury trial when the defendant requested a court trial, but the government refused to give its consent. The court stated: In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him. Id. at 36, 85 S.Ct. at 790. In Singer, the court recognized that there might be some cases where requiring the defendant to undergo a jury trial might result in denying the defendant the right to an impartial trial. Id. at 37-38, 85 S.Ct. at 791. Furthermore, Alaska Criminal Rule 53 provides additional authority for relaxation of the rules where necessary to advance justice. At trial however, Horton did not present any reason why he should not be required to have his case tried by a jury other than that he preferred a court trial. Horton never argued in the trial court that strict adherence to Criminal Rule 23 would be so unfair that the court should use its authority to relax the rules under Criminal Rule 53. Under these circumstances, Judge Gonzalez did not err in following Criminal Rule 23(a). ADMISSION OF OUT OF COURT STATEMENTS OF D.W. AND P.W. Horton next argues that Judge Gonzalez erred in allowing several witnesses to testify to out of court statements made by D.W. and P.W. concerning the sexual abuse. D.W.'s friend, Margaret, was the first witness for the state. Margaret testified that in September of 1984, D.W. told her that Horton was sexually abusing her. Crystal and Tonia, two of D.W.'s other friends, testified that they were present when D.W. made this report of sexual abuse. The three girls advised D.W. to talk to Officer James Rehmann, who was a liaison police officer at the school. Officer Rehmann testified next. Officer Rehmann testified that on September 22 or 23, 1984, D.W. told him that Horton had sexually assaulted her. He also described some of the circumstances of the offense, as related to him by D.W. Officer Reh-mann testified that he informed his supervisor, Investigator Steven Warner, of D.W.'s complaint on September 25. Investigator Warner testified that he conducted interviews with D.W. and P.W. Both girls told him that Horton was sexually abusing them. Investigator Warner also described some of the circumstances which the girls related to him concerning the offenses. In particular, he testified that D.W. told him that Horton had been abusing her since she was five or six years old. Following Investigator Warner, L.W., the mother of D.W. and P.W., testified that her daughters told her that Horton had been sexually abusing them. D.W. and P.W. testified next, describing the alleged incidents of sexual abuse. The next witness was the defendant's son, A.H. A.H. testified that he witnessed one of the acts of sexual abuse. The final state's witness was Dr. Lou Ann Feldman, a specialist in family practice. Dr. Feldman testified that D.W. and P.W. told her that Horton had been sexually abusing them for some time and related some details of the sexual abuse. She also related her findings from the physical examination of D.W. On appeal, Horton argues that the testimony of the witnesses who related statements by D.W. and P.W. was inadmissible hearsay testimony. He cites Nitz v. State, 720 P.2d 55 (Alaska App.1986). He claims that the repetition of the testimony of D.W. and P.W. by several witnesses, particularly the witnesses whose testimony might have been given particular weight by the jury, such as the police officers and the physician, was unduly prejudicial. See id. at 61, 71. The state argues that Horton did not' properly object to any of the testimony that he now challenges on appeal. The state therefore contends that this issue is only reviewable as plain error. Horton points out that he did object to the testimony of the first witness, Margaret. He argues that Judge Gonzalez's ruling on his objection foreclosed him from making objections to the testimony of the witnesses who testified later in the trial. Judge Gonzalez gave Horton an opportunity to explain his objection outside the presence of the jury. In making his objection, Horton conceded that a witness could testify that an alleged victim reported to them a complaint of sexual abuse. He objected, however, to the witness relating any details of the complaint. Judge Gonzalez agreed with Horton that the prosecution should not be allowed to elicit the details of the complaint. We do not believe that Judge Gonzalez's ruling foreclosed further objections by the defense on any ground. We consequently conclude that Horton did not preserve the objection that the testimony of the witnesses who related statements by D.W. and P.W. was inadmissible hearsay testimony forbidden under Nitz. Accordingly, we would reverse on this issue only if admission of the testimony amounted to plain error. We find plain error only if the error is obvious and prejudicial. Alaska R.Crim.P. 47(b); Van Hatten v. State, 666 P.2d 1047, 1056 (Alaska App.1983). D.W.'s friends, Margaret, Tonia, and Crystal, merely reported D.W.'s original complaint of sexual abuse. The young girls gave no details of any sexual abuse. Their testimony seems to be admissible as a first complaint under Greenway v. State, 626 P.2d 1060, 1060-61 (Alaska 1980). The testimony of Margaret, Tonia, and Crystal, therefore appears to be admissible even in the face of a proper objection. The testimony of the other witnesses is more problematical. The state concedes that the testimony of L.W. concerning her children's statements of sexual abuse would have been error had Horton properly objected. In Nitz, we referred to the particular prejudicial effect which could result from admission of hearsay statements of alleged victims of sexual assault as follows: [Wjhere a parade of witnesses is allowed to offer evidence of prior consistent statements before the victim testifies and is impeached, the jury may be tempted to substitute the credibility of the third-party witnesses for the credibility of the victim. Because the third-party witness will often be viewed as accepting — either implicitly or explicitly — the facts asserted in the victim's prior statements, allowing them to testify and to present evidence of the prior statements out of order — before the jury is able to discern that the legitimate purpose of the evidence is to counter an attack on the victim's credibility — openly invites the jury to accept the witness' view of the victim's credibility before the victim even testifies. This class of prejudice is particularly great and is particularly susceptible to abuse in cases such as the present one: here, the evidence of guilt consisted almost entirely of the testimony of an unsophisticated and relatively inarticulate child; her prior statements were presented to the jury through a series of articulate adult witnesses, whose ranks included credentialed professionals with extensive experience in dealing with sexual assault cases. Id. at 70-71. In the instant case, unlike Nitz, we are convinced that the hearsay statements of D.W. and P.W. had little impact on the case. P.W. and D.W. both testified. They were ages twelve and thirteen. Although the testimony which they gave was not extensive, it is clear that they were competent witnesses and that the jury was able to judge their credibility. D.W. and P.W. were not young children whose testimony was presented to the jury through the testimony of other witnesses. Furthermore, the testimony of D.W. and P.W. was corroborated by the testimony of A.H., Horton's son, who testified that he witnessed Horton having sexual contact with D.W. From our review of the record, we are convinced that the jury convicted Horton based upon the testimony of D.W., P.W., and A.H., rather than based on the repetition of the reports of sexual abuse by third-party witnesses. Accordingly, we do not find plain error. EVIDENCE SUPPORTING COUNTS IV AND VII Horton next argues that the evidence was insufficient to support a conviction on Counts IV and VII. Count IV charged Horton with sexual penetration (cunnilingus) of D.W. The indictment charges that the contact occurred during the period from June 1984 through September 1984. Count VII charged Horton with sexual penetration (genital intercourse) with D.W. during September 1984. Horton contends that D.W.'s testimony was insufficient to establish when these offenses occurred. Horton never raised these issues during the trial; he never moved for a judgment of acquittal based on this contention. We therefore review this issue for plain error. D.W. never testified precisely when these two incidents of sexual abuse allegedly occurred. We believe that when her testimony is looked at in context, however, it is sufficient to establish that an act of cunnilingus occurred during the summer of 1984 and that the act of intercourse occurred during or near September 1984. Furthermore, we recognize that the state must be given considerable leeway in charging the time that sexual activity with a minor occurred. See Covington v. State, 703 P.2d 436, 440-41 (Alaska App.), modified on other grounds, 711 P.2d 1183 (Alaska App.1985). It does not appear that Horton was prejudiced by any lack of precision in testimony concerning the dates of the alleged abuse. We do not find plain error. DOUBLE JEOPARDY Horton next contends that allowing separate convictions for Counts I and VI violated his federal and state guarantees against double jeopardy. Count I charged Horton with genital contact with D.W. Count VI charged Horton with digital penetration of D.W. Horton claims that because the two offenses occurred in a single episode, separate convictions and sentences on Counts I and VI violated the constitutional prohibitions against double jeopardy. U.S. Const, amend. V; Alaska Const, art. I, § 9. In Oswald v. State, 715 P.2d 276 (Alaska App.1986), the defendant digitally penetrated a minor female and then shortly thereafter had genital intercourse with her. He was convicted of two offenses, one for the digital penetration, and the other for the genital intercourse. We concluded that Oswald could only be convicted for one offense under those facts. We concluded that the two sexual offenses constituted one continuous assault and that only one conviction and one sentence was appropriate. The state concedes that the record is ambiguous as to whether Counts I and VI arose at the same time and as a single incident, or whether two separate incidents occurred. The state argues that because Horton did not object at trial, Horton must establish plain error. Because the record is ambiguous, the state contends that Horton cannot establish plain error. The state is correct that it is impossible to tell from D.W.'s testimony whether Counts I and VI were based on sexual acts which occurred at the same time or on different days. Because the issue involves Horton's constitutional right to protection against double jeopardy, which is ordinarily not forfeited by a failure to raise an objection at trial, however, we conclude that the burden is on the state to show that Counts I and VI involved separate acts. The state has the burden of proving each offense beyond a reasonable doubt. As a policy matter, we conclude that when the record is ambiguous as to whether the defendant committed one offense or two, the defend ant should prevail. Accordingly, we find that Counts I and VI merge. Horton should be sentenced on only one of those charges. The state may elect which conviction and sentence should stand. We therefore reverse and remand on this issue. SENTENCE Horton next claims that his sentence was excessive. Horton had three prior felony convictions, all for burglary not in a dwelling. Horton was forty-one years old at the time of sentencing. His first felony conviction for burglary arose out of an incident in 1961, when Horton was eighteen years old. The second burglary took place in 1965. The third conviction took place in 1976. Horton was sentenced to five years with two years suspended on the 1976 charge. Horton is a third felony offender for presumptive sentencing purposes. See Griffith v. State, 653 P.2d 1057, 1058 (Alaska App.1982). He is subject to presumptive terms of twenty-five years on each of the unclassified felonies of sexual abuse of a minor in the first degree. AS 12.55.-125(i)(4). On the two convictions for sexual abuse of a minor in the second degree, class B felonies, the presumptive term is six years. AS 12.55.125(d)(2). At his sentencing hearing on May 6, 1986, Horton argued that his case should be referred to the three-judge panel. AS 12.55.165-.175 Horton argued that it would be manifestly unjust to fail to consider, as a nonstatutory mitigating factor, the fact that Horton's prior crimes were property crimes and were remote in time. Second, Horton argued that, even if all the sentences were run concurrently, the imposition of the twenty-five year presumptive sentence would be manifestly unjust. In sentencing Horton, Judge Gonzalez concluded that it would not be manifestly unjust to sentence Horton to the twenty-five-year presumptive term. He rejected Horton's proposed nonstatutory mitigating factor. Judge Gonzalez emphasized the seriousness of Horton's current offenses, which involved two separate victims who received severe psychological injury which would require substantial counseling. Judge Gonzalez also concluded that Horton was a poor candidate for rehabilitation. In reaching this conclusion, Judge Gonzalez considered Horton's long-term problem of alcohol abuse and Horton's apparent lack of interest in dealing with the problem. Judge Gonzalez also emphasized Horton's prior record which involved three prior convictions for felonies. We conclude that these factors support Judge Gonzalez's decision to impose the twenty-five-year presumptive term. Accordingly, we conclude that Judge Gonzalez's decision to not refer this case to the three-judge panel was not clearly erroneous and that the sentence was not clearly mistaken. This case is REMANDED for reconsideration and resentencing consistent with this opinion. SINGLETON, J., not participating. . Criminal Rule 53 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 will work injustice.

10395165

Ronald A. SLOAN, Special Administrator for the Estate of Annie Bell Sloan, Appellant, and Cross-Appellee, v. Lawrence T. JEFFERSON, and Mary Jefferson, Appellees, and Cross-Appellants

Sloan v. Jefferson

1988-06-17

Nos. S-2132, S-2153

81

87

758 P.2d 81

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Ronald A. SLOAN, Special Administrator for the Estate of Annie Bell Sloan, Appellant, and Cross-Appellee, v. Lawrence T. JEFFERSON, and Mary Jefferson, Appellees, and Cross-Appellants.

Ronald A. SLOAN, Special Administrator for the Estate of Annie Bell Sloan, Appellant, and Cross-Appellee, v. Lawrence T. JEFFERSON, and Mary Jefferson, Appellees, and Cross-Appellants. Nos. S-2132, S-2153. Supreme Court of Alaska. June 17, 1988. Daniel T. Saluri, Law Offices of Daniel T. Saluri, P.C., Fairbanks, for appellant, and cross-appellee. David T. Jones, Perkins Coie, Anchorage, for appellees and cross-appellants. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

3527

22201

OPINION RABINO WITZ, Justice. I. INTRODUCTION. This appeal and cross-appeal raise four issues relating to findings of the superior court and a court appointed master in an action for an accounting. II. FACTS AND PRIOR PROCEEDINGS. In July 1974, Annie Bell Sloan, Lawrence Jefferson, and Mary Jefferson entered into an "Operating Agreement for Tenancy in Common" ("Agreement"). Under the Agreement, Sloan received an undivided one-half interest in various improved and unimproved Fairbanks properties owned by the Jeffersons in exchange for $50,500. The Agreement also provided that Sloan and Lawrence Jefferson would be co-managers of the property, but would receive no compensation for performing managerial duties. Sloan and the Jeffersons operated some of the improved properties as rental units. For several years after entering into the Agreement, Lawrence Jefferson spent much of his time away from Fairbanks while working on the Trans-Alaska Pipeline. During this period, he sent portions of his income to Sloan to cover expenses associated with the jointly owned property. Sloan collected rent, arranged for minor repairs, and generally managed the day-today affairs of the cotenants' property. The record-keeping of all parties to the Agreement was extremely poor. Jefferson was unable to document the precise amount of money he sent to Sloan over the years. Sloan, in turn, commingled funds relating to the cotenancy with monies from various other sources in her personal bank account. Her voluminous records do not clearly differentiate expenses associated with the co-tenancy properties from personal expenditures or expenses incurred in connection with other properties in which she had an interest. Sloan also made at least two large personal loans to Lawrence Jefferson in 1976 and 1977 for expenses unrelated to the cotenancy property. The record-keeping related to these loans was also extremely poor. In late 1979 or early 1980, the business relationship between Sloan and the Jeffer-sons began to sour. Lawrence Jefferson asked Sloan to account for the funds he had periodically sent her, but was not satisfied with her responses. In December 1980, Jefferson revoked the power of attorney which he had previously granted to Sloan. Finally, in April 1982, the Jeffer-sons filed suit against Sloan seeking, inter alia, an accounting and declaratory judgment setting forth the rights and liabilities of the parties to the Agreement. Sloan filed a counterclaim and the cases were consolidated for trial. Upon Sloan's motion, the superior court vacated the original trial date and referred the case to a special master to make findings of fact. The court appointed a certified public accountant as master and issued an order of reference and schedule for completion of the master's duties. The master held hearings at which both sides testified and submitted evidence. After considering the volume of disputed expense records, the master, with the parties' assent, directed the parties to review the records together and allocate claims as personal expenses, expenses of the cotenancy, and expenses upon which the parties disagreed. The parties met and submitted their results to the master. Thereafter the master filed his final report. After a bench trial, the superior court accepted all but two of the master's findings. The court determined the master clearly erred in determining the amount Lawrence Jefferson contributed to the co-tenancy from his paychecks and in allocating repair charges for one of the cotenant properties. The superior court therefore awarded the Jeffersons $53,124.32. Sloan appeals from the superior court's judgment and the Jeffersons cross-appeal. A. Did the Superior Court Err in Holding That the Master Properly Applied the Burden of Proof to Sloan and in Accepting the Master's Findings Based on This Burden? Sloan claimed she was entitled to credit for various expenditures she allegedly made for expenses associated with cotenan-cy properties. The master found that Sloan served as manager and record-keeper for the cotenants, and thus bore the burden of proving the amount to which she was entitled by documenting her claims for expenses, rental income she received, and contributions she received from the Jeffer-sons. The superior court concurred with these findings. Sloan argues on appeal that the superior court erred in finding that Sloan served as managing cotenant, by allocating the burden of proof to Sloan, and by accepting portions of the master's findings based on application of that burden. This court will not reverse the factual findings of the superior court unless those findings are clearly erroneous. Alaska R.Civ.P. 52(a); State v. Phillips, 470 P.2d 266, 268 (Alaska 1970). A finding is "clearly erroneous" if it leaves the reviewing court "with a definite and firm conviction that a mistake has been made." Hill v. Ames, 606 P.2d 388, 389-90 (Alaska 1980). Here, although the Agreement specified that Lawrence Jefferson and Sloan were to be "co-managers" of the cotenant properties, the testimony of the parties indicates that Jefferson spent little time in Fairbanks and that Sloan ran the day-to-day affairs of the cotenancy. Additionally, evidence indicates that Sloan kept the cotenants' records and maintained the cotenants' funds in her personal bank account. Therefore, we hold the superior court's conclusion that Sloan served as "managing cotenant" is not clearly erroneous. Allocation of the burden of proof is a question of law and thus subject to this court's independent review. See, e.g., Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). The party asserting a fact generally bears the burden of proving that fact. Skagway City School Bd. v. Davis, 543 P.2d 218, 222 (Alaska 1975) (defendant has burden of persuasion in establishing those facts which he is required to affirmatively plead); Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 465-67 (Alaska 1971) (burden of proof for establishing the value of benefits conferred rests upon proponent); Yeazell v. Copins, 98 Ariz. 109, 402 P.2d 541, 546 (1965); Osborn v. Manning, 685 P.2d 1121, 1124 (Wyo.1984) (burden of proof is on party asserting the affirmative of any issue). This is particularly true when the party asserting a fact controls the evidence which bears upon that fact. Holcomb v. Davis, 431 S.W.2d 881, 883 (Ky.1968) (partner maintaining partnership records must conclusively show credits he claims, and all ambiguities will be resolved against him); Dixon v. Anadarko Prod. Co., 505 P.2d 1394, 1396 (Okla.1972) (when evidence to prove a fact is within a party's control, that party bears the burden of producing the evidence). In this case, both the master and the superior court determined that Sloan acted as managing cotenant, kept the co-tenants' records, and maintained the coten-ants' funds in her personal bank account. Therefore, Sloan is in the better position to document her claims for expenses she allegedly incurred on behalf of the cotenants, and the master and the superior court did not err by imposing on Sloan the burden of proving the amount and legitimacy of her claims. We therefore hold that the superior court did not err in allocating the burden of proof to Sloan. We further conclude that the superior court did not err in accepting the master's factual conclusions which were based in part on that allocation. B. Did the Superior Court Err in Holding That Sloan Waived Her Right to Object to Methods Used by the Master to Calculate Her Expenditures for Cotenancy Expenses? The superior court determined that Sloan did not object to methods the master used to calculate her expenditures for cotenancy expenses until trial. The court thus concluded that Sloan waived her right to object to the master's treatment of her expense claims. Sloan argues that she raised timely objections to the master's methods, and therefore did not waive her right to present this issue to the trial court for its consideration. We need not address this issue. Despite its holding that Sloan waived her right to object to the master's methodology, the superior court expressly ruled on all objections to the master's methods which Sloan raised during trial and raises in this appeal. The court determined listing each invoice item in the master's report would be expensive, time consuming, and of no material benefit to the court or parties. The court also found the computer list submitted by Sloan did not adequately or conclusively support her expense claims. Finally, the court held the master had properly applied the burden of proof to Sloan. Therefore, even assuming arguendo that the superior court erred in holding that Sloan waived her right to object to the master's methodology, the ruling was harmless error. See, e.g., Kennedy Assoc., Inc. v. Fischer, 667 P.2d 174, 182 (Alaska 1983) (failure to apply objective standard was harmless error when evidence established that lender's dissatisfaction with building was objectively reasonable); Atlantic Richfield Co. v. State, 659 P.2d 930, 934 (Okla.1983) (unsuccessful party cannot complain of trial court's error when he would not have been entitled to succeed anyway). Harmless error must be disregarded. Veal v. Newlin, Inc., 367 P.2d 155, 157 (Alaska 1961). C. Did the Superior Court Err by Determining That Lawrence Jefferson Contributed $133,000.00 to the Co-tenancy? The master concluded documentary evidence verified that Lawrence Jefferson endorsed $77,324.00 in paychecks to Sloan as contributions toward the cotenancy's expenses. The superior court put this figure at $77,373.87. Records of Jefferson's paychecks were unavailable for at least two years during which the Agreement was in effect, but Jefferson claims to have sent checks to Sloan during that period as well. To arrive at an estimate of Jefferson's total payments to Sloan, the master computed that Jefferson endorsed 90% of the money he received in paychecks to Sloan for the period for which records were available. The master then applied this figure to Jefferson's total income during the period for which no records were available, and concluded that Jefferson contributed $182,-769.00 to Sloan for expenses associated with the cotenancy. During pre-trial discovery, Sloan admitted receiving $133,-117.00 in contributions from Jefferson. The superior court rejected the master's conclusion and held that Jefferson should be credited with a contribution of $133,-117.00, the amount Sloan admitted receiving. Sloan appeals this holding, arguing that her previous admission was erroneous and maintaining that Jefferson should be credited only with the contribution amount supported by documentary evidence, $77,-373.87. Jefferson cross-appeals, arguing that the superior court erred in rejecting the master's finding that Jefferson contributed $182,769.00 to the cotenancy. When a trial court adopts a master's findings, they become the findings of the court. Alaska R.Civ.P. 52(a). This court will not set aside a trial court's findings of fact unless those findings are clearly erroneous. Id.; Phillips, 470 P.2d at 268. However, when a trial court rejects the factual findings of a master, a reviewing court owes no deference to the trial court's findings. Nienow v. Nienow, 268 S.C. 161, 232 S.E.2d 504, 509 (1977); First Nat'l Bank of Martinsville v. Cobler, 215 Va. 852, 213 S.E.2d 800, 802 (1975). We therefore review de novo the question of whether the superior court erred in rejecting the master's finding that Jefferson contributed $182,769.00 to the cotenancy in the form of paychecks endorsed to Sloan. Our review of the record convinces us that the superior court erroneously rejected the master's finding. Lawrence Jefferson's testimony furnishes a basis for the master's conclusion that Jefferson sent 90% of his income to Sloan during the disputed period. Additionally, an affidavit from the Jeffersons' accountant, which estimates that Jefferson sent Sloan a sum "in excess of $177,156.88," tends to support the master's finding that Jefferson contributed $182,769.00 to the cotenancy. Sloan, on the other hand, presented no reliable evidence on the amount that Jefferson contributed. During discovery, Sloan admitted Jefferson had sent her $133,117.00. At a hearing before the master, however, Sloan's attorney put Jefferson's contribution at $90,000.00. Sloan now claims her admission during discovery was erroneous, and argues that Jefferson paid only $77,-373.87, the amount supported by documentary evidence. These conflicting figures undermine Sloan's credibility on the issue of Jefferson's contributions. Moreover, the master could have reasonably inferred that it was unlikely that Lawrence Jefferson would have contributed 90% of his paychecks during the period for which records are available to the cotenancy, but contributed nothing during at least two years when no records are available, as Sloan now suggests. Finally, Sloan herself was evasive when the master questioned her about Jefferson's contributions. For these reasons, we hold that the superior court erred by rejecting the master's finding concerning the Jeffersons' contributions to the cotenancy. D. Did the Superior Court Err in Failing to Account for the July 1977 Promissory Note from Jefferson to Sloan? In July 1977, Lawrence Jefferson gave Sloan a promissory note for $28,000.00 Jefferson testified at trial that he did not recall the obligation for which he gave Sloan the note. However, he also testified that he would have had no reason to borrow that amount of money from Sloan other than to make a large loan payment to Kansas City Life. Earlier in 1977, Sloan had made a $33,000.00 payment to Kansas City Life on Jefferson's behalf. Sloan, however, testified that the July 1977 promissory note was not related to the Kansas City Life payment, but was instead a personal loan for fertilizer and other expenses associated with Jefferson's plantation in Mississippi. The superior court made no express findings concerning the disputed promissory note. Sloan argues that the superior court erred in failing to address this issue, and asks this court to give her credit in the accounting for the full value of the note plus interest. The Jeffersons respond by noting that the master's findings gave Sloan credit for the $33,000.00 payment she made on Jefferson's behalf to Kansas City Life. Since the superior court accepted this finding, the Jeffersons argue that the court's failure to mention the July 1977 promissory note indicates the court implic itly agreed with the Jeffersons' position that the note represents Jefferson's Kansas City Life payment. The master clearly indicated that he would not decide any questions relating to the July 1977 promissory note: I see a loan that Mr. Jefferson has signed and is (indiscernible — manner of speech) to Mrs. Sloan. I don't think that money came out of the partnership funds, and I think this is an issue I'm going to leave up to Judge Greene. I guess, I'm mainly concerned about (indiscernible — pouring water) partnership funds. I don't believe this came out of the partnership, unless Mr. Wells can show that it did. In that event, I'll let Judge Greene decide the issue. Both parties addressed this issue in their pre-trial briefs to the superior court. If the court believed the Jeffersons' argument that the note covered the Kansas City Life payment Sloan made on behalf of Lawrence Jefferson, the court was correct in refusing to award Sloan a judgment on the note because the master had already accounted for the note by giving Sloan credit for the payment she made to Kansas City Life. On the other hand, if the trial court believed Sloan's argument that the note was for a loan Sloan gave to Jefferson to cover payments other than the one to Kansas City Life, the court erred by failing to grant Sloan a judgment on the note. However, without express findings from the superior court in regard to the disputed note, there is no way to determine the court's grounds for refusing to grant Sloan a judgment on the note. A trial court's findings must be sufficiently detailed and explicit to give an appellate court a clear understanding of the ground on which the trial court reached its decision. Wigger v. Olson, 533 P.2d 6, 7 (Alaska 1975) (quoting Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962)). If a trial court fails to provide such findings, this court will remand the case to the trial court for more specific findings. Wigger, 533 P.2d at 9; Johnson v. Johnson, 544 P.2d 1028 (Alaska 1976), cert. denied, 434 U.S. 1048, 98 S.Ct. 897, 54 L.Ed.2d 800 (1978) (case remanded to trial court for more specific findings when supreme court was unable to understand basis for court's decision). Therefore we remand this issue to the superior court for entry of appropriate findings of fact. E. Did the Superior Court Err in Allocating $17,420.00 in Interest Charges to the Jeffersons? Included among the Jeffersons' liabilities as determined by the master was $17,-400.00 for interest on a $26,000 personal loan from Sloan to Jefferson in January 1976. Since the superior court adopted all of the master's findings except for two specific findings unrelated to the January 1976 loan, the court implicitly charged the Jeffersons with interest on the loan. In their cross-appeal, the Jeffersons argue that the superior court erred by failing to make specific findings as to whether they were liable for interest on the January 1976 loan, and maintain they are in fact not liable for interest on that loan. Again, the parties disagree over the facts relating to the loan. Jefferson claims that money he sent to Sloan in 1977 satisfied his obligations on the note. Sloan, on the other hand, maintains that Jefferson did not repay the loan until the sale of a property owned by the cotenants in August 1981, at which time over $17,000 in interest had accrued on the obligation. The master did not specifically mention interest on the January 1976 note in his report, but included the interest in his calculation of the Jeffersons' liabilities. The superior court received testimony on this issue, and the Jeffersons addressed interest on the note in their list of issues for the court's consideration as well as in their pre-trial memorandum. The court did not make any specific finding as to whether the Jeffersons were liable for interest on the loan, but adopted the master's calculation of the Jeffersons' liabilities which included interest on the January 1976 loan. The Jeffersons thereafter moved the superior court to reconsider its decision, specifically arguing that they were not liable for inter est on the loan in question. The court did not alter its findings. The Jeffersons' contention that the superior court erred by failing to make explicit findings on their liability for interest on the January 1976 loan is without merit. The master's report charged interest on the January 1976 loan to the Jeffersons. Though the Jeffersons made it clear to the court that they disagreed with this portion of the master's report, the superior court nevertheless accepted the master's findings. Thus, despite the lack of any specific finding by the court, we conclude that the superior court implicitly found the Jeffer-sons liable for interest on the January 1976 loan. Since both the master and the superior court found the Jeffersons liable for interest, this court will not disturb this determination unless we find it clearly erroneous. Phillips, 470 P.2d at 268. The Jeffersons have submitted no documentary evidence showing that Lawrence Jefferson paid off the loan prior to August 1981. The testimony as to when he paid off the loan is conflicting. Therefore, we hold the superior court did not err in accepting the portion of the master's report charging interest on the January 1976 loan to the Jeffersons. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. . The master then issued his tentative report. As authorized by the superior court, the master directed the parties to list their objections which had arisen during the master's proceedings, as well as to submit a list of issues which the parties believed the court should address. . Sloan also argues that the superior court erred by accepting the master's findings when the master failed to adhere to instructions from the court, failed to consider the evidence submitted by Sloan bearing on expenses of the cotenancy, and failed to perform "certain accounting procedures." These claims are without merit. The superior court concurred with the master's conclusion that a computer generated list of checks submitted by Sloan did not adequately or conclusively support her expense claims. The court also found that the master had not listed individual invoices and expense allocations in his report, but concluded this procedure would have been time consuming, expensive, and of no material benefit to the court or parties. Even a cursory review of the record supports these conclusions. Therefore, the superior court's acceptance of the master's findings was not clearly erroneous. . Sloan herself was unable to supply the master with information identifying the source of many of the deposits to the account in which she kept the cotenants' funds. . Jefferson's obligation to Kansas City Life was for loan payments on a plantation Jefferson owned in Mississippi, and thus was unrelated to expenses or obligations of the cotenants under the Agreement. . The expenses associated with Jefferson's plantation were unrelated to expenses or obligations of the cotenants under the Agreement. , The parties put the disputed amount at $17,-420.00.

10395446

Patrick A. COMEAU, Appellant, v. STATE of Alaska, Appellee

Comeau v. State

1988-07-01

No. A-2074

108

124

758 P.2d 108

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Patrick A. COMEAU, Appellant, v. STATE of Alaska, Appellee.

Patrick A. COMEAU, Appellant, v. STATE of Alaska, Appellee. No. A-2074. Court of Appeals of Alaska. July 1, 1988. Michael A. Stepovich, Fairbanks, for appellant. Ernst Wendl, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

11071

68746

OPINION BRYNER, Chief Judge. Patrick A. Comeau was convicted by a jury of driving while intoxicated (DWI), in violation of AS 28.35.030. At trial, he requested an instruction allowing the jury to consider reckless driving, AS 28.35.040, as a lesser-included offense of DWI. The trial court declined to give the requested instruction. Comeau appeals, contending that the trial court erred in its ruling. We reverse. Under Alaska Rule of Criminal Procedure 31(c), "[a] defendant may be found guilty of an offense necessarily included in the offense charged...." An offense is "necessarily included in the offense charged" when it is impossible to commit the charged offense without also committing the included offense. Minano v. State, 690 P.2d 28, 31 (Alaska App.1984), rev'd on other grounds, State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985). When a lesser offense is necessarily included in the offense charged, the jury must be instructed on the included offense if an element distinguishing the greater offense from the lesser is actually in dispute. Rice v. State, 589 P.2d 419, 420 (Alaska 1979); Blackhurst v. State, 721 P.2d 645, 648 (Alaska App.1986). Failure to instruct on a lesser-included offense violates the accused's right to fundamental fairness and is reversible error. Christie v. State, 580 P.2d 310, 318 (Alaska 1978). Two approaches have been developed for determining whether a lesser offense is necessarily included in the offense charged, the statutory elements approach and the cognate approach. Both focus on the same fundamental question: would commission of the offense charged be possible without commission of the lesser offense? Each approach resolves this question from a slightly different perspective. The statutory elements approach focuses narrowly and exclusively on the elements of the greater and lesser offenses, as defined by statute. The cognate approach concentrates more broadly and realistically on the facts charged in the complaint or indictment and on the evidence actually presented at trial. State v. Minano, 710 P.2d at 1016; Blackhurst v. State, 721 P.2d at 648; Norbert v. State, 718 P.2d 160, 162-63 (Alaska App.1986). Alaska has adopted the cognate approach. State v. Minano, 710 P.2d at 1016; Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979). Accordingly, a review of the evidence presented against Comeau at trial is crucial to the determination of whether, in his case, reckless driving was a necessarily included offense of DWI. The state's theory was in essence that Comeau drove while actually impaired by alcohol and recklessly caused an accident. The evidence tended to establish that, while driving on College Road in Fairbanks, Co-meau lost control of his car, swerved suddenly and for no apparent reason into the path of another automobile, and caused a collision. Comeau left the scene without identifying himself to the other driver or reporting the accident. When he was apprehended several hours later, he was given a breath test, which revealed a blood alcohol level of .134, well above the presumptive level of intoxication. Extrapolation based on the assumption that Comeau had consumed no alcohol after the accident yielded an estimated blood alcohol level of between .15 and .22 at the time of the accident. The only evidence of Comeau's driving was the evidence establishing his involvement in the accident. As evidence of intoxication, the state relied on Comeau's involvement in the accident and on his test results. The only theory of DWI submitted to the jury was that Comeau's driving was actually impaired by his consumption of alcohol; the jury was not given the option of finding Comeau guilty on the theory that his blood alcohol level exceeded the permissible statutory maximum. For his part, Comeau did not dispute that he had been driving and was involved in an accident. He testified, however, that the accident was entirely the fault of the other motorist and that his driving was not impaired by his prior consumption of alcohol. According to Comeau, his high breath test resulted from alcohol that he had consumed between the time of the accident and his arrest. Based on this evidence, we must determine whether a rational juror could have found Comeau guilty of DWI but not guilty of reckless driving. The evidence left several possibilities open to the jury. The first two are obvious: the jury could have accepted the state's evidence in its entirety and convicted Comeau of DWI, or it could have accepted Comeau's testimony completely and acquitted him. A third possibility open to the jury under the evidence was to accept the state's theory that Comeau was responsible for the accident but to conclude that there was a reasonable doubt as to his intoxication when the accident occurred. The possibility of the jury reaching this result arose from the significant lapse of time between the accident and Comeau's apprehension, and from Comeau's testimony that he had consumed alcohol after the accident occurred. By expressly contesting the issue of his intoxication at the time of the accident, Comeau placed in dispute the principal element distinguishing the crime charged, DWI, from the lesser offense of reckless driving. The fourth, and last, possible outcome open to the jury is the critical one. Because Comeau disputed his responsibility for the accident as well as his intoxication when it occurred, it is at least conceivable that the jury could have concluded that his driving at the time of the accident was actually impaired by his consumption of alcohol but that the accident nevertheless occurred through no fault of his own. It is this possible outcome that raises the central question whether Comeau could have been convicted of drunken driving but acquitted of reckless driving. Only if Co-meau could not have been convicted of DWI without also being convicted of reckless driving would the latter offense be necessarily included in the former. See Alaska R.Crim.P. 31(c). If the issue of recklessness depended on Comeau's fault in causing the accident it would be apparent that, under the fourth possible outcome, he could be convicted of DWI without also being convicted of reckless driving. However, Comeau's recklessness cannot properly be made to turn on his responsibility for the accident. For if Comeau drove while actually impaired by alcohol, he drove recklessly, regardless of who was at fault in the accident. To conclude otherwise would be to hold that a person who drives drunkenly on a public roadway in the presence of other cars is not reckless unless that person actually causes an accident. Although that is the view taken in the dissenting opinion, it is foreclosed by prior decisions of the Alaska Supreme Court and this court. In Lupro v. State, 603 P.2d 468 (Alaska 1979), the defendant drove while he was intoxicated, became involved in an accident that caused the death of a pedestrian, and was convicted of manslaughter. Under the law applicable at the time, manslaughter was defined as a homicide resulting from the "culpable negligence" of the accused. See former AS 11.15.080. Lupro challenged his conviction on appeal, contending that, in order to establish culpable negligence, the state was required to prove not only that he drove while intoxicated but also that he committed some additional act of negligence. Lupro, 603 P.2d at 474-75. The supreme court squarely rejected this argument. The court first defined "culpable negligence," as follows: In order to establish culpable negligence the state must show a degree of conduct more wanton and reckless than that involved in ordinary negligence .[,] "a reckless disregard of consequences, a needless indifference to the rights and safety and even the lives of others." Lupro, 603 P.2d at 475 (citations omitted). This definition is synonymous with the traditional definition of recklessness. See St John v. State, 715 P.2d 1205, 1208-09 (Alaska App.1986). Applying this definition, the Lupro court went on to hold that a person who drives while intoxicated is culpably negligent as a matter of law: We believe that a person who drives while he is so intoxicated that he cannot control his actions falls within this definition. "One who is considerate of the rights of others does not drive while he is drunk." Where there is sufficient evidence that the driver was intoxicated at the time of the accident the state need only show beyond a reasonable doubt that the intoxication was the cause of the victim's death.... . Before reaching a verdict of guilty it was necessary only that each juror find that the defendant had been driving while intoxicated and that this was the proximate cause of the accident. Lupro, 603 P.2d at 475 (citation omitted). The unmistakable import of the court's holding in Lupro is that, under the traditional definition of recklessness, a person who drives while actually impaired by alcohol is per se reckless. Nevertheless, the law governing recklessness for most crimes has now changed. The Alaska Revised Criminal Code, which took effect after Lupro was decided, has divided the former concept of "culpable negligence" into two distinct but related culpable mental states: recklessness and criminal negligence. See AS 11.81.900(a)(3) and (4). Under the current statutory definitions, the level of risk necessary for both recklessness and criminal negligence is identical: both standards require conduct that creates "a substantial and unjustifiable risk" — that is, [t]he risk must be of such nature and degree that disregard of it [or 'the failure to perceive' it] constitutes a gross deviation from the standard of care that a reasonable person would observe_ AS 11.81.900(a)(3). This level of risk is substantially similar to the risk required under Lupro to establish culpable negligence. See St. John v. State, 715 P.2d at 1208-09. The only distinction drawn by the revised criminal code between recklessness and criminal negligence lies in the accused's subjective perception of the risk posed by the accused's conduct. Recklessness occurs when the defendant is "aware of and consciously disregard[s]" the risk. See AS 11.81.900(a)(3). Criminal negligence results when the defendant merely "fails to perceive" that risk. See AS 11.81.900(a)(4). The current statutory definition of "recklessly" further provides, however, that "a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly...." This court has had occasion to review Lupro in light of the intervening changes in the statutory definition of recklessness. In so doing, we have expressly recognized the continued vitality of the supreme court's decision. In Edgmon v. State, 702 P.2d 643 (Alaska App.1985), we considered these statutory provisions in the context of a drunken driving manslaughter prosecution. We concluded that, in determining whether an intoxicated person has acted recklessly or with criminal negligence, the issue of whether that person "is unaware of a risk of which the person would have been aware had that person not been intoxicated" is a question of fact. Thus, we held that, to prove recklessness as opposed to criminal negligence, "[t]he state [was] . obligated to prove that Edgmon, given his faculties, his education, his experience, and his intelligence, would have perceived the risk [posed by his drunken driving] but for his intoxication." Id. at 645. Implicit in our holding in Edgmon is the recognition that, under the statutory definitions set out in AS 11.81.900(a)(3) and (4), a person who drives while intoxicated must either be reckless or criminally negligent. What was implicit in Edgmon we made explicit in St. John v. State, 715 P.2d 1205 (Alaska App.1986). In St. John, another drunken driving manslaughter case, the trial judge instructed the jury that it was required to find that the defendant acted recklessly if it found that he drove while intoxicated. In addressing a challenge to this instruction, we specifically recognized that the basic holding in Lupro continued to apply to the statutory definitions of recklessness and criminal negligence found in the revised criminal code: In summary, evidence that a defendant drove while intoxicated and, as a result, caused the death of another person, may establish a prima facie case of the recklessness necessary for a finding that the defendant committed manslaughter. 715 P.2d at 1209. We nevertheless concluded that the instruction challenged in St. John was improper for two reasons. First, relying on our prior decision in Edgmon, we noted that the question of whether drunken driving amounted to recklessness, as opposed to criminal negligence, was an issue of fact for the jury. Because the jury might have found either recklessness or criminal negligence, we concluded that it was error to instruct that drunken driving was tantamount to recklessness. 715 P.2d at 1209. Second, relying on case law prohibiting the use of mandatory presumptions in criminal cases, see Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), we held that the legal relationship between drunken driving and recklessness should have been communicated to the jury in the form of a permissive inference rather than a mandatory presumption. Id. at 1209-10 & n. 2. Neither of the grounds we relied on for reversal in St. John erodes the validity of the primary holding in Lupro. While St. John recognizes that drunken driving may amount to either recklessness or criminal negligence, by so doing it establishes that a person who drives on a public roadway while actually impaired by alcohol is at least criminally negligent. Beyond that, St. John stands for the proposition that the trial court cannot, by the use of a mandatory presumption, usurp the jury's role of deciding whether the state has proved all the elements of the offense. This proposition has no bearing whatsoever on whether a person who engages in drunken driving necessarily acts recklessly. When read together, the holdings in Lupro, Edgmon, and St. John establish beyond dispute that a person convicted of driving on a public roadway, in the presence of other traffic, while actually impaired by alcohol, is also necessarily guilty of driving recklessly or with criminal negligence, as those terms are defined in the revised criminal code. Applying the settled rules governing lesser-included offenses to the definition of recklessness and criminal negligence contained in the revised criminal code, it follows that lesser-included offense instructions on reckless and negligent driving would be required in a DWI prosecution whenever the element of intoxication was disputed and whenever the prosecution supported its case by proof that the defendant actually drove in an erratic or dangerous manner. Nevertheless, this conclusion does not fully resolve the issue presented in Comeau's case. The offenses of reckless and negligent driving, as set out in AS 28.35.040 and .045, are not subject to the definitions of recklessness and criminal negligence established in the revised criminal code. Rather, each of the offenses includes its own definitions. Alaska Statute 28.35.040 establishes the offense of reckless driving, prohibiting a person from driving "in a manner which creates a substantial and unjustifiable risk of harm to a person or property." The statute goes on to provide: A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. AS 28.35.040(a). This definition is virtually identical in scope to the combined conduct encompassed by the definitions of recklessness and criminal negligence that are set out in the revised criminal code. Compare AS 28.35.040(a) with AS 11.81.900(a)(3) and (4). In substance, this definition is also indistinguishable from the concept of "culpable negligence" that was passed upon by the supreme court in Lupro. See Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981). Thus, the definition of recklessness in AS 28.35.040(a) changes nothing. Its similarity to the definitions contained in the past and current criminal codes serves only to underscore the validity of the basic conclusion reached in Lupro, Edgmon, and St. John: that a person who drives while under the influence of alcohol is guilty of reckless driving. In comparison, Alaska's negligent driving statute, AS 28.35.045, may be satisfied by proof of an "unjustifiable risk of harm," as opposed to the "substantial and unjustifiable" risk required for reckless driving. The definition of an "unjustifiable risk" is essentially the same definition that applies to cases of ordinary civil negligence: An unjustifiable risk is a risk of such a nature and degree that a failure to avoid it constitutes a deviation from the standard of care that a reasonable person would observe in the situation. AS 28.35.045(a). In addition to requiring proof of negligence, however, the negligent driving statute requires proof of another element: that a person or property was actually endangered by the conduct of the accused. For purposes of this requirement, endangerment of a person or property includes the defendant and the defendant's property. Id. In context, the reason for inclusion of an actual endangerment requirement in the negligent driving provision is obvious: be cause the statutory definition of negligence incorporates the same standard of ordinary care used in cases of civil negligence, the added requirement of actual endangerment is necessary to protect against the possibility that a prosecution for negligent driving —a relatively serious infraction — might be based merely upon commission of some less serious traffic offense. Without the actual endangerment requirement, for example, a driver who exceeded the speed limit by five miles per hour on an empty stretch of highway would be subject to prosecution and conviction for negligent driving. Although the dissenting opinion attempts to engraft the "actual endangerment" requirement of the negligent driving statute onto the reckless driving provision that precedes it, the attempt is strained and cannot withstand scrutiny. While inclusion of the actual endangerment requirement in the negligent driving statute is dictated by that statute's reliance on the civil standard of ordinary care, no similar rationale justifies tacking a parallel requirement onto the reckless driving provision. To do so would be senseless. And in fact the legislature did not do so. Alaska's reckless driving prohibition is set out in a separate statutory provision from the negligent driving statute, and its clear and unambiguous language omits all reference to the need for proof of actual endangerment. The trial court did not construe the reckless driving provision to include an added requirement of actual endangerment, and the state has never suggested such a novel interpretation. As justification for reading into the reckless driving statute a requirement which is plainly not there, the dissenting opinion points to the language of the negligent driving statute that expressly makes negligent driving a lesser-included offense of reckless driving. AS 28.35.045(b) provides: The offense of negligent driving is a lesser offense than, and included in, the offense of reckless driving, and a person charged with reckless driving may be convicted of the lesser offense of negligent driving. The dissent reasons that, unless the actual endangerment requirement is read into the reckless driving statute, negligent driving would not be a true lesser-included offense of reckless driving. And so, the dissent decides that the extra requirement must be added to the reckless driving statute. See dissenting opinion, footnote 6. This reasoning is a case of the tail wagging the dog. The legislature's apparent reason for including express lesser-included offense language in the negligent driving statute was precisely that this language was necessary because the statute, as written, was not a true lesser-included offense of the reckless driving statute. Although Alaska's criminal and motor vehicle codes establish a myriad of true greater offense/lesser-included offense combinations, we are aware of no other instance in which the legislature has chosen to include a comparable provision expressly designating one offense as a lesser-included offense of another. This is a telling indication of the legislature's recognition that express lesser-included offense language is simply unnecessary when one offense is a true lesser-included offense of another. The legislature could easily have included an express actual endangerment requirement in the reckless driving statute had it wanted one. The fact that it did not further serves to establish that the lesser-included offense language in the negligent driving statute was motivated by the legislature's desire to specify a lesser-included offense where one would otherwise not have existed. In summary, we conclude that, under the cognate approach, reckless driving and negligent driving were lesser-included offenses of DWI in the present case. Because the issue of Comeau's intoxication was in dispute, and because the state presented evidence from which the jury could have found Comeau guilty of reckless driving or negligent driving even if it acquitted him of DWI, the trial court erred in refusing Comeau's request for an instruction on these lesser-included offenses. The conviction is REVERSED. . Under AS 28.35.030(a), DWI may be established by proving that the defendant was actually under the influence of intoxicating liquor or that the defendant's blood alcohol level, as revealed by a breath test, exceeded 100 milligrams of alcohol per 100 milliliters of blood. The statute provides, in relevant part: (a) A person commits the crime of driving while intoxicated if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1)while under the influence of intoxicating liquor, or any controlled substance listed in AS 11.71.140 — 11.71.190; (2) when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10 percent or more by weight of alcohol in the person's blood or 100 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.10 grams or more of alcohol per 210 liters of the person's breath; or (3) while the person is under the combined influence of intoxicating liquor and another substance. . Of course, a strong argument could also be made that this fourth possible outcome was not realistically open to the jury. Comeau's involvement in the accident was the principal evidence offered by the state to establish that his driving was actually impaired due to the consumption of alcohol. Apart from this evidence, the only evidence of his intoxication was the fact of his elevated blood alcohol level. Comeau's elevated blood alcohol level, however, did not directly establish that his driving was actually impaired. In this regard, it is significant that Comeau's jury was not instructed on the statutory presumption applicable to breath test results of .10 or greater. See AS 28.35.030(a)(2). Realistically, then, it is difficult to see how the jury could have concluded that Comeau's driving was actually impaired by alcohol if it rejected the state's theory that he caused the accident. See Marker v. State, 692 P.2d 977, 983 (Alaska App.1984) (emphasizing the significance of applying the cognate approach realistically). Because Judge Singleton's dissenting opinion posits this fourth outcome as a realistic possibility under the evidence, however, the discussion in the text proceeds on the assumption that the jury could reasonably have reached the conclusion that Comeau's driving was impaired by alcohol but that he was not responsible for the collision. . The concurring opinion suggests that there may be some fundamental distinction between the recklessness inherent in DWI and other forms of recklessness covered by the reckless driving statute. Thus, the concurrence sees a possible distinction in the fact that reckless driving, as opposed to DWI, "involves bad and heedless driving_ Driving while intoxicated . does not necessarily involve physical acts which constitute bad driving. Primarily, DWI involves driving while impaired by alcohol." I find this statement particularly disturbing in its implications, for it suggests that DWI may involve some lesser, innocuous form of recklessness — a form less threatening than others. The concurring opinion makes the mistake of confusing reckless conduct with its immediate result. It is of course true that many types of recklessness lead to results that can readily be perceived by an external observer as being dangerous. But there are many reckless acts besides driving while intoxicated that create a substantial and unjustifiable risk of harm without immediate, externally observable signs of danger. For example, a person who chose to drive with closed eyes would certainly be reckless, but it is conceivable that such a driver could go for some distance without creating an appearance of "bad driving." This is not to say that the driving is not "bad driving;'' only that it has no outwardly observable bad results. Like a driver with closed eyes, a driver who is impaired by alcohol is engaging in "bad driving." The fact that both drivers may go for some distance without outward manifestations of their recklessness has little to do with the fact that their conduct is reckless, nor does it serve as a basis for distinguishing their recklessness from other forms of recklessness. . AS 11.81.900(a)(3) and (4) provide that, for purposes of the revised criminal code, (3) a person acts "recklessly" with respect to a result or to a circumstance described by a provision of law defining an offense 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; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk; (4) A person acts with "criminal negligence" with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive 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 the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. . As a concomitant of its role as the exclusive fact-finder in criminal cases, the jury always has the ability to nullify the law. This ability hardly serves as a basis for denying a lesser-included offense instruction. If that were the case, then a lesser-included offense instruction would never be required under the prevailing legal standard, because, in theory, the jury would always have the power, by resorting to nullification, to convict the defendant of the crime charged while acquitting on a necessarily included lesser offense. In deciding whether Comeau could have been acquitted of reckless driving had he been convicted of DWI, we must assume that the finder of fact — here, the jury — would have acted rationally and in accordance with applicable law; the possibility of nullification can play no part in the analysis. See Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068-69, 80 L.Ed.2d 674 (1984). The dissent, in the present case, accuses the majority of "confusing] a prima facie case with the necessary finding required to establish a greater and lesser offense relationship under the cognate theory." The dissent, however, appears to do precisely what is forbidden — that is, to posit the possibility of an irrational jury verdict as a basis for concluding that Comeau could have been convicted of the greater offense but acquitted of the lesser. . We emphasize that we are dealing with the cognate approach to lesser-included offenses and that the cognate approach deals with case-specific evidence. Lupro, Edgmon, and St. John, as well as the present case, all involve situations in which the defendant drove on a public roadway in the presence of other vehicles or persons. The statute prohibiting DWI, however, covers not only actual driving, but any act of "operating" a motor vehicle. In prior DWI cases, we have broadly defined "operating" to include all situations in which the accused exercises actual physical control over a motor vehicle, regardless of whether any actual driving occurs. See, e.g., Lathan v. State, 707 P.2d 941 (Alaska App.1985). The supreme court has recently added its voice to ours. See Alaska Department of Public Safety v. Conley, 754 P.2d 232, (Alaska, 1988). Accordingly, in certain situations involving "operation" where no actual driving occurs, it might be arguable that the defendant's conduct, though technically prohibited under the DWI statute, is not actually reckless or criminally negligent. In such unusual situations, the cognate approach might lead to the conclusion that reckless or negligent driving would not be lesser-included offenses of DWI, because it might be possible for a reasonable jury to find the defendant guilty of DWI without also finding reckless or negligent driving. By the same token, where the prosecution in a DWI case relied exclusively on the statutory prohibition against driving with a blood alcohol level of .10 or greater and made no effort to establish actual impairment, it might be arguable— though somewhat less plausibly — that conviction of DWI would not necessarily imply commission of reckless or negligent driving. Because, in applying the cognate approach, we deal only with the facts and evidence in the case before us, it is sufficient to note that the issues raised by these hypothetical situations are not presented on the facts of Comeau's case and can be addressed in future cases if and when they arise. As a practical matter, it may be expected that questions concerning the need for a lesser-included offense instruction will seldom arise in such cases, for typically the jury would have no evidence apart from the evidence of intoxication to rely on as a basis for finding recklessness. Because there would be no way to find reckless driving without finding DWI, the need for a lesser-included instruction on reckless driving would be obviated. See footnote 7, post. Here, at any rate, Comeau undisputedly engaged in driving on a public roadway, with other traffic present. Under the circumstances, if the state established that he was actually under the influence of alcohol when he drove, Lupro, Edgmon, and St. John would compel the finding that he was either reckless or criminally negligent. . Two aspects of this conclusion may be less than self-evident; they deserve clarification. First, if the element of intoxication is not actually in dispute — as when the accused defends solely on the contention that no driving occurred— then a lesser-included offense instruction is not warranted because there is no rational basis to support a conclusion that the accused committed the lesser offense without also committing the greater. See, e.g., Rice v. State, 589 P.2d 419, 420 (Alaska 1979). Second, a similar result follows when there is no evidence of actual impaired driving — as when the prosecution bases its entire case on a breath test result that exceeds the statutory maximum. In such situations, assuming the jury rejected the evidence of the accused's breath alcohol level and acquitted of DWI, there would simply be no rational basis left to support a finding of guilt on the lesser offenses of reckless or negligent driving. Instruction on these offenses would therefore be unwarranted. . The full text of AS 28.35.040 is as follows: (a) A person who drives a motor vehicle in the state in a manner which creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. (b) A person convicted of reckless driving is guilty of a misdemeanor and is punishable by a fine of not more than $1,000 or by imprisonment for not more than one year or by both. (c) Lawfully conducted automobile, snowmobile, motorcycle or other motor vehicle racing or exhibition events are not subject to the provisions of this section. . The text of AS 28.35.045 is as follows: (a)A person who drives a motor vehicle in the state in a manner which creates an unjustifiable risk of harm to a person or to property and who, as a result of the creation of the risk, actually endangers a person or property is guilty of negligent driving. An unjustifiable risk is a risk of such a nature and degree that a failure to avoid it constitutes a deviation from the standard of care that a reasonable person would observe in the situation. Proof that a defendant actually endangered a person or property is established by showing that, as a result of the defendant's driving, (1) an accident occurred; (2) a person, including the defendant, took evasive action to avoid an accident; (3) a person, including the defendant, stopped or slowed down suddenly to avoid an accident; or (4) a person or property, including the defendant or the defendant's property, was otherwise endangered. (b) The offense of negligent driving is a lesser offense than, and included in, the offense of reckless driving, and a person charged with reckless driving may be convicted of the lesser offense of negligent driving. (c) A person convicted of negligent driving is guilty of an infraction as provided under AS 28.40.050.... (d) Lawfully conducted automobile, snowmobile, motorcycle or other motor vehicle racing or exhibition events are not subject to the provisions of this section. . This is because violation of a traffic regulation may constitute negligence per se. See Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971). . In fact, the state does not seriously contend that Comeau could have committed DWI without also committing reckless driving. The state's primary argument in support of the trial court's rejection of a lesser-included offense instruction is its claim that there is no inherent relationship between DWI and reckless driving — that they are fundamentally different crimes and therefore not subject to treatment as greater and lesser offenses. See Reynolds v. State, 706 P.2d 708, 711 (Alaska App.1985); see also Moore v. State, 740 P.2d 472, 475 (Alaska App.1987). This argument is simply mistaken. The reckless driving statute seeks to protect society from damage inflicted to persons and property by a broad range of motorists who drive recklessly. The DWI statute protects against precisely the same social harm, but singles out a particularly dangerous subclass of reckless driver for more severe treatment. Far from being unrelated, the two offenses appear to be closely and inherently related as to their basic social purpose and the nature of the conduct they proscribe. The present case does not require us to determine whether and to what extent DWI may itself, under some circumstances, be a lesser-included offense of other crimes, such as manslaughter or assault. We express no opinion on the issue, since it is not raised in the case. . Even if the dissenting opinion's interpretation of the reckless driving statute were correct, it would not support the ultimate conclusion the dissent reaches in this case. The dissent relies on the finding that actual endangerment is a necessary ingredient of reckless driving in order to support its conclusion that, if Comeau did not cause the accident, he might have been guilty of DWI without also being guilty of reckless driving. The dissent reasons that, unless Comeau was responsible for the accident, his driving did not result in actual endangerment to persons or property. This reasoning is incorrect. As already pointed out, if Comeau drove while actually impaired by alcohol, he acted recklessly. Because it is undisputed that Comeau drove on a public roadway in the presence of other traffic and actually became involved in an accident, the risk he created by his recklessness unquestionably resulted in actual endangerment to persons or property, even if he was not responsible for the accident. Thus, even accepting arguen-do the dissenting opinion's interpretation of AS 28.35.040, under the undisputed evidence in this case, a finding that Comeau engaged in drunken driving would necessarily lead not only to the conclusion that he drove recklessly but also to the further conclusion that his recklessness resulted in actual endangerment to persons or property. The dissent's suggestion that a person can somehow be only "minimally impaired" by consumption of alcohol and therefore be technically guilty of DWI without posing any substantial and unjustifiable risk of harm is squarely contradicted by the holding in Lupro. For if the supreme court had believed that a driver who was impaired by alcohol could conceivably drive without creating an actual risk, the court would not have held, as it did in Lupro, that DWI is per se reckless. . Our conclusion flows from a straightforward application of Criminal Rule 31(c) and the cognate approach. Contrary to the assertion of the dissenting opinion, we neither expand the cognate approach nor apply the "lesser related offense" doctrine. We are aware that our conclusion is contrary to that reached by the courts of many other jurisdictions. See generally, Annotation, Reckless Driving As Lesser Included Offense of Driving While Intoxicated or Similar Charge, 10 A.L.R. 4th 1252 (1981 & Supp.1987). To a certain extent the difference in result may be explained by differences between the statutes governing DWI and reckless driving in Alaska and other states. To a far greater extent, however, our departure from the case law of other jurisdictions has been compelled by Alaska's adherence to the cognate approach and by the Alaska Supreme Court's decision in Lupro, which unequivocally holds that an intoxicated driver is a reckless driver.

10399269

In the Matter of J.H., a Minor

In re J.H.

1988-07-15

No. A-2521

1287

1294

758 P.2d 1287

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

In the Matter of J.H., a Minor.

In the Matter of J.H., a Minor. No. A-2521. Court of Appeals of Alaska. July 15, 1988. Terri Spigelmyer, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for J.H. Teresa Williams, Asst. Atty. Gen., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for the State of Alaska. Vincent Vitale, Law Offices of Vincent Vitale, Anchorage, for Parents of J.H. Barbara L. Malchick, Asst. Public Advocate, and Brant McGee, Public Advocate, Anchorage, as Guardian ad Litem. Before BRYNER, C.J., COATS, J., and SERDAHELY, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

4034

25374

BRYNER, Chief Judge. J.H., a minor, appeals an order of institutional commitment entered upon her adjudication as a delinquent child by Superior Court Master William D. Hitchcock and approved by Superior Court Judge Victor D. Carlson. J.H. contends that the superi- or court erred in rejecting less restrictive alternatives to institutionalization. We reverse. J.H., a sixteen-year-old girl, was adjudicated a delinquent child for acts that would have amounted to burglary in the second degree, AS 11.46.310(a) (a class C felony), and criminal mischief in the third degree, AS 11.46.484(a)(2) (a class A misdemeanor). On March 7, 1988, J.H., accompanied by another person, entered her father's place of business without permission; each of them took a truck. J.H. was apprehended the following day. Based on this incident, the state filed a petition on March 11,1988, seeking J.H.'s adjudication as a delinquent child. J.H. admitted the allegations of the petition at arraignment. The record discloses that J.H. was bom in Las Vegas, Nevada, to a sixteen- or seventeen-year-old woman. J.H. stayed with her mother for about four months but was undernourished and neglected. J.H. was then adopted by her mother's sister and the sister's husband. She spent the next six years living with them. J.H.'s first adoptive mother severely abused J.H., both physically and sexually. During this time, J.H. was also apparently abused by her maternal grandmother. When J.H. was six years old, her adoptive father made arrangements for her to live in Anchorage with Mr. and Mrs. H., who eventually adopted her. Until August of 1987, when she was fifteen years of age, J.H. maintained a relatively unremarkable relationship with her second adoptive parents. Although Mr. and Mrs. H. report that there have always been behavioral problems stemming from J.H.'s early years of abuse, those problems were minor before the summer of 1987. In August of 1987, J.H. ran away from home. She returned after approximately a week, but ran again in October. She returned home again within about a week. On December 16,1987, J.H. ran away from home for a third time. The following day she encountered her mother at an Anchorage shopping mall and threatened to commit suicide if her mother forced her to return home. As a result of J.H.'s suicide threat, her parents had her committed to the Alaska Psychiatric Institute (API) for observation. J.H. was released from API on January 16, 1988, having spent approximately one month in the hospital. Her discharge summary found no indication of any mental illness or serious conduct disorder. The report diagnosed J.H.'s problem as an adjustment disorder with disturbance of conduct. The problem was attributed to the abuse that J.H. experienced in her early years and to J.H.'s inability to cope in the context of her current family situation. The API discharge summary noted: Interviews focused with the patient on relationship between her feelings about her prior abuse and problems she is having dealing with authority figures and family relationships, as well as reinforcing the need for family therapy if she is ever going to be able to be reintegrated into her adoptive family. The discharge summary concluded that, as long as J.H. remained at home, her prognosis would remain poor and she would continue to present a high risk of running away. The report strongly recommended residential treatment: The patient needs a residential treatment program such as Booth Memorial Home, while she and her family continue in family therapy. This patient is not committable. Should the patient continue to live at her adoptive parents' home, she is at high risk for running away. Despite the report's recommendation, J.H. returned home upon her discharge from API. After a short time at home, she ran away again. J.H. came to the attention of the authorities on this occasion when she tried to stay at a girlfriend's house after her girlfriend's parents instructed her to leave. The girlfriend's parents called the police, who initially placed J.H. in custody for trespassing. Subsequently, on February 2, 1988, the state filed a petition alleging that J.H. was a child in need of aid. The trespassing charges were not pursued. At a probable cause hearing on the child in need of aid petition, J.H. stated that she would refuse to return home. J.H.'s parents indicated that they were incapable of dealing with J.H., that they were concerned that she would run again if allowed to return home, and that they believed she needed to be placed in a setting where she would be required to obtain treatment. Apparently, however, there were no immediate openings available in any residential treatment program. The court expressed reluctance to place J.H. in a foster home, observing that such a placement would offer no better assurance of controlling J.H.'s behavior than her home placement. The court ordered J.H.'s case continued for a period of thirty days and directed preparation of a treatment plan. After ordering J.H. to stay home and go to school, and after instructing her concerning the possibility of contempt, the court ordered J.H. to return home pending a further hearing to determine an appropriate treatment plan. J.H. ran away from home within two weeks. She was taken back into state custody on February 17,1988, and an amended child in need of aid petition was filed. According to the petition, J.H. complained that she had been beaten by her father. The social worker who filed the amended petition stated that she had observed various bruises and a cut on J.H. J.H. appeared in court in response to the amended petition on February 19, 1988. All parties stipulated to a ninety-day period of temporary state custody. The court appointed the Public Defender Agency to represent J.H. and also appointed the Office of Public Advocacy as guardian ad litem. After setting a new hearing date, the court ordered J.H. to be placed in a foster home pending development of a treatment plan. The state additionally requested an order requiring J.H. and her parents to undergo family counseling. J.H.'s parents opposed the request. The court directed J.H.'s parents to file a written opposition. J.H.'s parents subsequently filed, through counsel, a formal opposition to any additional family counseling efforts. At the same time, the parents requested commencement of contempt proceedings against J.H. They alleged that J.H. would not "participate in counseling in a meaningful manner until and unless she has been consequenced for her contemptuous behavior." The contempt proceedings against J.H. were ultimately abandoned, however, because J.H. ran away from her foster home and committed the acts that led to her adjudication as a delinquent child. Following J.H.'s apprehension and her admission of the delinquency petition, the superior court scheduled a disposition hearing for April 5, 1988, and ordered J.H. detained pending the hearing. A predisposition report was prepared by the Division of Family and Youth Services. The report characterizes J.H. as an emotionally immature sixteen-year-old who is in desperate need of treatment for the problems stemming from her early years of abuse, as well as for her more recent problems in coping with her current family situation. In addition to J.H.'s repeated episodes of running away from home, her performance at school appears to have deteriorated. She has shown no interest in classes, has had numerous absences, and has become involved in fights with other students. In February of 1988, about a month before the incident that led to her adjudication as a delinquent child, J.H. stopped attending school after being questioned by school authorities concerning her connection with an incident involving distribution of drugs among students. During her periods away from home, J.H. has become involved with adult men; there are also indications that she has extensively used controlled substances and alcohol. The precise scope of these activities is difficult to determine, however, because, as part of her acting out behavior, J.H. apparently attempts to cast herself in a bad light by deliberately exaggerating her substance abuse and her relationships with older men. According to the predisposition report, J.H.'s early experiences of abuse have in all likelihood resulted in several prominent difficulties. She has a distrust of authority figures and has difficulty forming stable, trusting relationships with adults. She also encounters confusion in differentiating between friendship and sexuality in her relationship with older men. There is a particular concern that J.H.'s confusion might make her vulnerable to exploitation. The author of J.H.'s predisposition report strongly recommended that J.H. be placed for treatment in the residential program at Booth Memorial Home (Booth). The report noted that J.H. had already been screened by Booth and had been approved for acceptance. This recommendation was endorsed by the Division of Family and Youth Services' placement committee. An immediate opening at Booth was available at the time of J.H.'s disposition hearing. At the April 5 disposition hearing, the superior court master had before him the predisposition report and the API discharge summary. With the exception of J.H.'s parents, all of the parties at the predisposition hearing — including the state, the guardian ad litem, and J.H. herself— agreed that placement in the Booth program would be the most desirable treatment setting for J.H. J.H.'s parents, however, insisted that J.H. be institutionalized at the McLaughlin Youth Center. In their view, J.H. would simply continue to run away unless placed in a confined setting. When questioned at the predisposition hearing concerning his recommendation for treatment, the author of J.H.'s predisposition report, Probation Officer Gary Caddell, acknowledged that J.H.'s own willingness to engage in treatment was the only assurance that she would not run from Booth. Caddell also recognized that J.H. would continue to pose a danger to herself and others as long as she had not received treatment, and he conceded that the sincerity of J.H.'s commitment to treatment was questionable. Caddell nevertheless adhered to his recommendation for placement at Booth. He indicated that institutionalization at McLaughlin could have a harmful impact on J.H. He stated that J.H. appeared to be amenable to treatment and that Booth appeared to be the best place for her to receive it. Caddell emphasized that Booth dealt with runaways on a continual basis. J.H. spoke briefly in her own behalf at the disposition hearing. She said that she had a strong commitment to succeeding in the Booth program. Despite the near unanimous recommendations of the parties, the superior court master rejected Booth as a dispositional alternative and ordered J.H. institutionalized. The master found that J.H. was not credible and that her desire for treatment at Booth did not appear to be genuine. The master reasoned that J.H. could be assured of success at Booth only if she was genuinely committed to treatment. On this basis, he concluded that J.H. could not successfully be treated at Booth: It appears to this court that one of the primary prerequisites to a successful placement at a program such as Booth would be evidence that the minor is committed to change and is receptive to treatment. Judging the minor's commitment by words alone is an exercise that is fraught with peril. I believe the court must look at the whole array of facts in making that determination. Here, there are unfortunately several serious indicators that [J.H.'s] verbal commitment can not be weighed too heavily. I believe credibility is clearly a question, and I don't believe that [J.H.] is credible. Her actions, her pattern of behavior, both before and after D.Y.F.S. involvement, make this all very doubtful. For [J.H.] to succeed at Booth, I believe there must also be evidence to indicate that she could develop a bond, a bond of trust with staff that would offer some hope of holding her into the program. Again, unfortunately, I find the evidence bodes to the contrary. Again, as the probation officer recognizes himself, [J.H.] has shown an inability to trust adults, to form meaningful relationships, to accept nurturance from caring adults. The master's order of institutionalization was subsequently upheld by the superior court. On appeal, J.H. challenges the ruling, alleging that it is unsupported by the evidence. Alaska Statute 47.10.080(b) sets forth the various alternatives for disposition following an adjudication of delinquency, including restitution, probation, foster home placement, and institutionalization. Because the statute itself gives no guidance for selection of an appropriate alternative, this court, in R.P. v. State, 718 P.2d 168 (Alaska App.1986), adopted the "least restrictive alternative" approach, which has been endorsed by the IJA-ABA Juvenile Justice Standards Project, Standards Relating to Dispositions § 2.1 (TentDraft 1977) (hereinafter IJA-ABA Standards). We said in R.P.: Under the Standards, the court must consider and reject less restrictive alternatives prior to imposition of more restrictive alternatives. Further, the state has the burden of proving that less restrictive alternatives are inappropriate by a preponderance of the evidence. R.P., 718 P.2d at 169 (emphasis in original; citation omitted). The least restrictive alternative approach has now been incorporated in the Alaska Delinquency Rules. Delinquency Rule 23(d) requires the court to "order the least restrictive alternative disposition under AS 47.10.080(b) that addresses the juvenile's treatment needs and protects the public." Under Delinquency Rule 11(e), the state bears the burden of proving by a preponderance of the evidence that a particular disposition "is the least restrictive alternative appropriate to the needs of the juvenile and the protection of the community." To determine the least restrictive alternative in a given case, the court must consider, among other things, the seriousness of the offense, the degree of the child's culpability, the totality of the underlying circumstances in the case, and the child's prior record. R.P., 718 P.2d at 169-70. The goal of rehabilitation is always of paramount importance in children's proceedings. Id. at 169-70 n. 1; In re Aline D., 14 Cal.3d 557, 121 Cal.Rptr. 816, 822, 536 P.2d 65, 70 (1975). Accordingly, a strong presumption against institutionalization attaches in all but extreme cases. R.P., 718 P.2d at 169-70 n. 1. On appeal, this court must defer to the trial court's superior fact finding abilities. This court is precluded from reversing the superior court's findings on factual matters in the absence of clear error. Nevertheless, the ultimate determination of whether a particular disposition constitutes the least restrictive alternative is a question of law, and not one of fact. See State ex rel. S.J.C. v. Fox, 165 W.Va. 314, 268 S.E.2d 56, 58 n. 2 (1980); State v. M.M., 163 W.Va. 235, 256 S.E.2d 549, 556 (1979). In the present case, we find that the superior court erred in concluding that institutionalization was the least restrictive alternative available for J.H. Although we agree with the superior court master's observation that the least restrictive alternative approach does not require that a child be allowed to fail at each level of placement before placement in the next restrictive level may be made, we find no substantial evidence in the record of the present case to warrant a conclusion that J.H.'s treatment needs could not be successfully addressed by residential treatment such as that offered in Booth. We accept the superior court's finding that J.H. will pose a serious danger, particularly to herself, as long as she runs from her placement and remains out of control. This problem, however, is typical of adolescent children who are in need of aid by virtue of persistent runaway behavior. Absent some specific indication that J.H.'s criminal misconduct poses such an unusual danger as to preclude placement in a residential treatment facility or that J.H.'s problem with runaway behavior is so intractable as to rule out residential treatment as a placement alternative, the fact that she is a danger to herself and others when she runs does not, in itself, suffice to warrant institutionalization. We further accept the superior court's conclusion that J.H.'s offense was a relatively serious one and that she was fully culpable in committing it. Yet J.H. had no prior history of serious antisocial behavior, and it seems apparent that her conduct in committing the acts for which she was adjudicated a delinquent child stemmed not from any deeply seated antisocial tendency, but rather from her current and past family problems, for which she stands in need of treatment. The superior court made no contrary finding. Neither the seriousness of J.H.'s offense nor her prior record establishes a need for institutionalization as opposed to residential treatment. J.H.'s acts, if committed by an adult, would amount to a class C felony. Absent exceptional circumstances, a probationary sentence would be warranted for a youthful first offender convicted of a class C felony. See Leuch v. State, 633 P.2d 1006, 1013-14 (Alaska 1981). The validity of the superior court's determination that J.H.'s treatment needs cannot be addressed at Booth must thus depend on whether there is some other, specific evidence in the record to establish a likelihood that J.H. would not be amenable to treatment except in an institutional setting. Our review of the record discloses an almost total lack of concrete evidence to indicate that J.H.'s placement in a residential treatment setting such as Booth would be futile. J.H.'s runaway behavior, though persistent and repeated, was of relatively short duration, having commenced only approximately seven months before the conduct that led to her adjudication. It is undisputed that the runaway behavior was precipitated by J.H.'s family situation and that she needs treatment to cope with the problem. It is also undisputed that, despite clear warnings of a need for treatment and despite express predictions that J.H.'s runaway behavior would almost inevitably continue without treatment, no meaningful effort to address J.H.'s treatment needs was ever made prior to her disposition hearing. While all indications are that J.H. desperately needs treatment and will benefit greatly from it, she has yet to be given an opportunity to participate in treatment. There is utterly no history in the record to suggest that, if given the opportunity to receive treatment in a noninstitutional environment, she would fail. Significantly, during the month that J.H. spent at API— her only placement in a structured setting where some treatment resources were available — she made no apparent attempt to run away. All of the expert recommendations in the record favor J.H.'s placement in a residential treatment setting such as Booth. Moreover, the record indicates that Booth, which has extensive experience dealing with runaway behavior, has already screened J.H. and found her to be suitable for placement in its program. The attorney for the state, J.H.'s guardian ad litem, and J.H. herself all concur in the recommendation for placement at Booth. While the opposing views of J.H.'s parents certainly deserve consideration, their conclusion that J.H. needs to be institutionalized and could not be treated at Booth appears to be based simply on their personal impression that she would continue to run away unless confined and forced to receive treatment. The record of the disposition hearing indicates that J.H.'s parents expressed this view without having taken the opportunity to become personally acquainted with the treatment facilities and program offered at Booth. In determining, based on this record, that institutionalization was the least restrictive alternative for J.H., the superior court master relied almost exclusively on a personal disbelief in the sincerity of J.H.'s desire for treatment. Master Hitchcock found that a genuine commitment to treatment was necessary to succeed at Booth, and he was not convinced that J.H.'s verbal commitment was "credible." As we have already pointed out, however, J.H. has never previously run away from a residential treatment setting and has never been afforded any opportunity for treatment at all. The record undisput-edly establishes that J.H. has repeatedly run away from home because her home is the primary source of the problems for which she needs treatment. Consequently, her repeated tendency to run away from unstructured family settings cannot be taken as a reliable indicator that she would continue to run from a structured residential placement where therapy is available. J.H.'s lack of "credibility" is not affirmative evidence establishing that she would not be amenable to treatment. The record contains no evidence to support the master's conclusion that a child must have a genuine commitment to treatment before embarking on a program of rehabilitation in order for that program to succeed. There is no reason to suppose that a child's commitment to treatment cannot be developed through exposure to a viable treatment setting. A contrary conclusion would seem anomalous, for it would require a child to be genuinely committed to a program of rehabilitation without ever being given the opportunity to understand, in any realistic sense, what such a program might involve. Here, Booth determined that J.H. was a suitable candidate for placement in their program. There is no evidence that, in reaching this conclusion, Booth was unfamiliar with J.H.'s background or misled as to the genuineness of the commitment to treatment. Moreover, by relying on J.H.'s lack of credibility to rule out the possibility of a placement at Booth, the superior court master effectively shifted the applicable burden with regard to proof of the least restrictive alternative. The practical effect of the master's approach was to require institutionalization unless affirmatively persuaded by J.H. that she was genuinely desirous and capable of succeeding in a residential treatment placement. Shifting responsibility to J.H. to convince the court of her serious desire for treatment was unjustified: In order to support a particular disposition, the Department must prove by a preponderance of the evidence that the disposition is the least restrictive alternative appropriate to the needs of the juvenile and the protection of the community. Alaska Delinquency Rule 11(e). See also IJI-ABA Standards § 2.5 B, commentary at 40-41. We conclude that the superior court's finding that institutionalization of J.H. was required as the least restrictive alternative is not supported by any substantial evidence in the record. The court therefore erred in rejecting the recommended placement in Booth. Normally, our conclusion would require us to reverse the superior court's disposition order, with directions to effectuate the originally recommended placement. In the present case, however, at oral argument, J.H.'s counsel and her guardian ad litem both expressed concern because, now that J.H. has been placed at McLaughlin Youth Center and has become involved in a treatment program, there is a possibility that her transfer to another treatment setting such as Booth would no longer be in her best interest. Under the circumstances, we deem it best to remand this case to the superior court for an evidentiary hearing to determine J.H.'s current best interests, while leaving the superior court's original disposition order intact pending that determination. We will retain appellate jurisdiction until completion of the proceedings on remand. This case is REMANDED. SINGLETON, J., not participating. . The tentative draft relied on in R.P. was replaced by the approved draft, IJA-ABA Juvenile Justice Standards, Standards Relating to Dispositional Procedures (Approved Draft 1980). The approved draft adopts the substance of the least restrictive alternative approach articulated in the tentative draft. See IJA-ABA Standards § 2.5 B, 7.1 A 3 (Approved Draft 1980). . Although J.H. spent thirty days at API and did participate in group therapy sessions and individual counseling, J.H.'s hospitalization appears to have been for observation and evaluation in light of her suicide threats, rather than for treatment of the problems that led to her runaway behavior. She was discharged when it was determined that she was not suicidal and did not suffer from any committable mental illness.

10395263

BEN LOMOND, INC. and Jomax, Inc., Appellants, v. Judith ALLEN, Appellee

Ben Lomond, Inc. v. Allen

1988-06-24

No. S-1981

92

97

758 P.2d 92

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

BEN LOMOND, INC. and Jomax, Inc., Appellants, v. Judith ALLEN, Appellee.

BEN LOMOND, INC. and Jomax, Inc., Appellants, v. Judith ALLEN, Appellee. No. S-1981. Supreme Court of Alaska. June 24, 1988. Brent M. Wadsworth, Law Offices of Brent M. Wadsworth, Anchorage, for appellants. Tim MacMillan, Kalamarides & MacMil-lan, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2519

14793

OPINION MOORE, Justice. Judith Allen entered into a contract with the defendant builders to purchase a home. As a down payment on the home, Allen conveyed to the builders a lot which she owned in Kotzebue. After Allen breached the contract, she sued Jomax, Inc. and Ben Lomond, Inc. for restitution. The jury returned a special verdict making the following findings of fact: (A) the fair market value of the lot conveyed to the builders was $12,000. and (B) the total amount of consequential damages sustained by the builders was $458.40. This ultimately resulted in an award for Allen of $26,206.21. Ben Lomond, Inc. and Jomax, Inc. appeal. We reverse in part on the ground that the evidence does not support the portion of the jury verdict concerning the builders' consequential damages. I. On June 23, 1980, Judith Allen entered into a contract with Arctic Jomax Construction, Inc. to purchase a home then under construction in Kotzebue. The contract, entitled Earnest Money Agreement, was signed by the parties and set the purchase price of the home at $89,500. Allen held title to a 12,101 square foot lot in Kotzebue which she received from the city in a land give-away program. To satisfy a $10,-212.70 down payment, Allen conveyed title of her Kotzebue lot to Ben Lomond, Inc. The parties' contract stated that the builder was "taking [a] $12,000 lot" and would issue a credit at closing for the difference between $12,000 and the $10,212.70 needed to satisfy the down payment. Upon receiving title to the lot, the builders subdivided it into two lots, built a house on each, and sold them. Judith and her husband, Clarence Allen, were approved for a home loan by Alaska Bank of the North in Kotzebue. As promised, the builders completed construction of the home by August 4, 1980, the date set for the loan closing. During closing, Allen refused to sign the final documents. The parties in this case do not dispute the fact that Allen breached the contract on August 4, 1980. The builders resold the home on April 20, 1981, evidently for the same amount for which Allen had agreed to buy it. As the defaulting buyer, Allen sued the builders for restitution of either the lot she conveyed to them as down payment or, in the alternative, for the monetary value of the lot. In July, 1983, the case was brought to trial before a jury, which was instructed to decide two issues: First, the jury was to determine the fair market value of the lot as of the date conveyed by Allen as down payment. Second, the jury was to determine the consequential damages incurred by the builders as a result of Allen's breach of contract. The jury found that the fair market value of the lot was $15,000 and the consequential damages incurred by the builders were $602. The builders, dissatisfied with the verdict, then moved the court to enter judgment notwithstanding the verdict and/or to grant a new trial. The court denied the motion for judgment notwithstanding the verdict but granted the motion for a new trial. Prior to the second trial, the court denied the builders' motion for a change of venue. At the second trial in September, 1986, the jury addressed the same two issues and found that the fair market value of the lot conveyed to the builders was $12,000 and the builders' consequential damages were $458.40. The trial court entered judgment in favor of Allen for $26,206.21 which included the value of the lot less the builders' damages, plus interest, costs and partial attorney's fees. Again, the builders moved for judgment notwithstanding the verdict and/or a new trial. The trial court denied both motions. The builders appeal, alleging that the trial court made numerous errors. II. Restitution is available to a defaulting party to a contract to the extent that the benefit retained by the non-breaching party exceeds the amount of damages incurred by that same party as a consequence of the breach. See Freedman v. Rector, 37 Cal.2d 16, 230 P.2d 629 (1951); see also D. Dobbs, Remedies 863 (1973); Restatement (Second) of Contracts § 374 (1979). We adopt the majority rule which places the burden of proof on the defaulting buyer to prove the amount by which the benefits exceed the damages. See 1 G. Palmer, The Law of Restitution, § 5.4, at 583-85 (1978). It is difficult to rationalize placing the burden of proof on the non-breaching party, who is the defendant in such restitution actions. Applying that rule, Allen is entitled to restitution damages measured by the value of the lot conveyed to the builders less the consequential damages incurred by the builders. Allen has the burden to prove the value of the lot and the amount of the builders' damages. The builders argue that the trial court erred in failing to grant their motion for a new trial on the ground that the jury verdict was against the clear weight of the evidence. In reviewing the trial court's denial of a motion for new trial, "we must examine the record and determine whether 'the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.' " Sloan v. Atlantic Richfield Co., 541 P.2d 717, 724 (Alaska 1975) (quoting Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964)). If there is an "evidentiary basis for the jury's decision," we must affirm the denial of a new trial. Olson v. McRae, 389 P.2d 576, 577 (Alaska 1964). In this case, we find that the jury verdict with respect to the builders' damages is contrary to the clear weight of the evidence. The jury concluded that the builders incurred consequential damages in the sum of $458.40. A review of the record provides no basis upon which this verdict can rest. The builders offered detailed evidence on several specific items of consequential damages incurred by them. John Ringstad, who handled the mortgage loan applications for Alaska Bank of the North in Kotzebue, testified at trial as to the losses incurred by the builders as a consequence of Allen's breach. Specifically, Ringstad testified as to the following expenses which were definitely paid by the builders: $53.38 for a credit report on Allen and a $402.50 commitment fee to Alaska Housing Finance Corp. for processing the loan. Mr. Ringstad also testified that a loan origination fee of $805 was probably paid to the bank by the builders. Additionally, the cost of heating the home between August and when the home was resold in April of the following year was between $750 and $1,000. Finally and most significantly, the builders incurred $9,940.16 in finance charges from August 4, 1980, the date the contract was breached, until April 20, 1981, the date the home was ultimately sold. Given the ordinary delays in reselling a home, including finding a buyer and allowing the buyer time to conduct a new title search, inspection, and acquire financing, we find that at least some portion of these finance charges was a foreseeable consequence of Allen's breach, and should have been included in the jury award. In sum, no matter how conservatively one arrives at the number representing the builders' consequential damages, that number would exceed the one arrived at by the jury. Since the jury's verdict as to the amount of consequential damages incurred by the builders is contrary to the clear weight of the evidence, the trial court should have granted the builders' motion for a new trial on this issue. See Alaska R. Civ. P. 59(a). As for the jury's verdict of $12,000 for the value of the lot, we affirm. We believe that the evidence presented on this issue could have led to a lower verdict than that returned by the jury. However, we are not convinced that the jury's verdict was against the clear weight of the evidence. Thus, the superior court did not err in denying the builders' motion for new trial on this issue. III. Prior to the second jury trial in this case, the builders moved for a change of venue based on their argument that they could not get an unbiased jury in the "largely native community" of Kotzebue, where Allen had strong family and cultural ties. In reviewing the trial court's denial of a motion for a change of venue, we reverse the trial court only if the trial judge abused his or her discretion in denying the motion. See Maier v. City of Ketchikan, 403 P.2d 34, 39 (Alaska 1965); AS 22.10.040. The builders offer no evidence which shows that a Kotzebue jury would be biased against them. Furthermore, this court has previously held that no pattern has been found that "where Eskimos are the predominant ethnic group . [the] jurors [are] unwilling to follow the court's instructions." Wilson v. City of Kotzebue, 627 P.2d 623, 635 (Alaska 1981). The trial court did not abuse its discretion in denying the builders' motion for change of venue. The judgment of the superior court is AFFIRMED in part, REVERSED in part and the case is REMANDED to the superi- or court for further proceedings consistent with this opinion. . The parties are confused about the separate identities of Arctic Jomax Construction, Inc.; Jomax, Inc.; and Ben Lomond, Inc., the shares of which have overlapping ownership. For example, in Allen's complaint, she alleges her contract was with Jomax, Inc. The defendants admitted this allegation, and affirmatively pleaded it in their answer. However, the written contract plainly shows that it was entered into by Arctic Jomax Construction, Inc. Similarly, in their answer, defendants called Arctic Jomax Construction, Inc. "the defendant," when a glance at the caption of this case shows that it is not. Defendants also alleged that Allen transferred her Kotzebue lot to Arctic Jomax Construction, Inc., when the deed is made out to Ben Lomond, Inc. Since the parties do not find it necessary to distinguish between the three corporations, neither do we. Instead, we will refer to them as "the builders" when possible. .The Restatement states the rule as follows: (1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach. (2) To the extent that, under the manifested assent of the parties, a party's performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. Restatement (Second) of Contracts § 374 (1979). . A defaulting buyer does not meet this burden merely by proving that some benefit was transferred to the seller. To prevail, the defaulting buyer must prove the amount of damages suffered by the seller. 1 G. Palmer, The Law of Restitution, § 5.4, at 585 (1978). Failure to offer any proof by the defaulting buyer would result in a judgment for the non-breaching seller. See Kitchin v. Mori, 84 Nev. 181, 437 P.2d 865, 867 (1968). . The result of placing the burden of proof on the defaulting buyer is that the non-breaching seller will derive the benefit of doubt if the buyer fails in its burden of proof. See 1 G. Palmer, The Law of Restitution, § 5.4, at 587 (1978). . The builders argue that the damage defenses of mitigation and foreseeability do not apply in restitution actions brought by a defaulting buyer. We disagree. Corbin, discussing the measurement of recovery by a defaulting plaintiff in a restitution action, states that "[t]he amount of the defendant's injury will be measured in accordance with the usual rules for determining damages for a breach." 5A A. Corbin, Corbin on Contracts, % 1124 at 13 (1964). Accordingly, the damage defenses of foreseeability and mitigation are available in restitution actions brought by a defaulting buyer. . After reviewing the record, we believe that the lowest award for consequential damages that a jury could reasonably return would include the following: 1) costs of $455.88, including $402.50 for a loan commitment fee to Alaska Housing Finance Corp. and $53.35 for a credit check; 2) interest of at least $1,600, which would be two months' interest at the lowest rate then prevailing, since the evidence suggests that it would take the builders at least two weeks to find a buyer and six more weeks to get a loan approved; 3) offset by one month's rent of approximately $250, since Bill Lomax, one of the builders, used the house at the earliest in September of 1980 and since the only evidence on rental values was $250 per month. Thus, the least amount of damages a jury could reasonably award would be $1,805.88. . Alaska R.Civ.P. 59(a) provides: Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury or in an action tried without a jury, if required in the interest of justice. On a motion for a new trial in an action tried without a jury, the court may take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. . The evidence did support the jury verdict of $12,000 for the value of the lot. For example, the contract itself referred to the '$12,000 lot" which satisfied the $10,212.70 down payment. We recognize that the stated contract amount is not determinative of the value of the lot, but it is at least evidence of the value. See Restatement (Second) of Contracts § 374 comment b (1979). Furthermore, Allen testified that the lot was worth $20,000 when she conveyed it to the builders. Finally, the builders submitted evidence that other lots in the area during the same time period sold at prices ranging from $5,000 to $10,500. However, on cross-examination, Allen elicited evidence that the lot which previously sold for $10,500 was a 10,500 square foot lot. In other words, it sold for $1.00 per square foot. At this $1.00 per square foot price, Allen's 12,101 square foot lot would sell for approximately $12,000. . The trial court's previous award of interest, costs and attorney's fees based on the special verdict is also vacated, as these matters must of necessity be determined after a new trial is completed on the claim of the builders' consequential damages.

10399216

John A. HILLMAN and Janet Hillman, individually, and Janet Hillman as Personal Representative of the Estate of Julie G. Hillman, a deceased minor, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Maury Hafford, Appellees

Hillman v. Nationwide Mutual Fire Insurance Co.

1988-07-01

No. S-1669

1248

1256

758 P.2d 1248

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

John A. HILLMAN and Janet Hillman, individually, and Janet Hillman as Personal Representative of the Estate of Julie G. Hillman, a deceased minor, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Maury Hafford, Appellees.

John A. HILLMAN and Janet Hillman, individually, and Janet Hillman as Personal Representative of the Estate of Julie G. Hillman, a deceased minor, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Maury Hafford, Appellees. No. S-1669. Supreme Court of Alaska. July 1, 1988. Michael J. Schneider, Mestas & Schneider, P.C., Anchorage, for appellants. Peter J. Maassen, Burr, Pease & Kurtz, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4514

27973

OPINION MATTHEWS, Justice. Following the death of their eleven year old daughter, John and Janet Hillman filed suit against Nationwide Mutual Fire Insurance Company for benefits under the uninsured motorists and medical payments sections of their automobile insurance policy issued by Nationwide. Nationwide denied liability, claiming that the policy provides no coverage in this instance. After making several important but non-dispositive rulings, the superior court granted Nationwide's motion for summary judgment and entered a final judgment dismissing the Hillmans' complaint. This appeal followed. The facts are undisputed. On August 14,1983, eleven year old Julie Hillman was driving her family's three wheel all-terrain vehicle (ATV) in the Nancy Lake area near Wasilla. The accident occurred when Julie attempted to cross Long Lake Road, and the ATV was struck by a truck. Julie died as a result of the collision. The driver of the truck was uninsured. At the time of Julie's accident, however, the Hillmans had a Nationwide auto policy which listed three insured vehicles: a 1977 Datsun pickup, a 1976 Plymouth, and a 1978 GMC pickup. The ATV was not listed. Each listed vehicle had uninsured motorists coverage. The policy provided, in the "Uninsured Motorists" section under the bold-faced heading "coverage," that Nationwide will pay bodily injury damages that you or your legal representatives are legally entitled to recover from the owner or driver of an uninsured motor vehicle. Damages must result from an accident arising out of the ownership, maintenance, or use of the uninsured ve-hicle_Relatives living in your household also have this protection. In the same section of the policy several "COVERAGE EXCLUSIONS" are listed. The pertinent exclusion is number four: This Uninsured. Motorists insurance does not apply as follows: 4. It does not apply to bodily injury suffered while occupying a motor vehicle owned by you or a relative living in your household, but not insured for Uninsured Motorist coverage under this policy. It does not apply to bodily injury from being hit by any such vehicle. The final relevant policy language is the definition of "motor vehicle:" In this policy: 6. the words "MOTOR VEHICLE" mean a land vehicle designed to be driven on public roads. They do not include vehicles operated on rails or crawler-treads. Other motor vehicles designed for use mainly off public roads are covered when used on public roads. (Emphasis added). This definition is under the bold-faced heading "DEFINITIONS." About one year after the accident, Mrs. Hillman wrote to Nationwide to initiate a claim under the policy. In September, 1984, Nationwide's claims adjuster, Maury Hafford, denied the Hillmans' claim, stating that coverage under the policy did not extend to the ATV. The Hillmans wrote Nationwide several more times, but Nationwide continued to deny coverage. Eventually, the Hillmans filed suit. On cross-motions for summary judgment, the superi- or court determined that the Nationwide policy did not provide coverage for the accident, and entered final judgment dismissing the Hillmans' complaint. DISCUSSION A. WHAT DOES "COVERED" MEAN IN THE MOTOR VEHICLE DEFINITIONS PARAGRAPH? Initially, it is apparent that this accident falls within the general "Coverage" language of the "Uninsured Motorists" section of the policy. Julie suffered bodily injury resulting from an accident with a driver of an uninsured vehicle. It is equally apparent, however, that if Julie were occupying a motor vehicle owned by the Hillmans but not insured under the policy, "Uninsured Motorists Exclusion" number four would apply, and there would be no policy coverage. The Hillmans' position is that the final sentence, of the motor vehicle definition, "[ojther motor vehicles designed for use mainly off public roads are covered when used on public roads" (emphasis added), constitutes an affirmative grant of coverage to persons operating off road vehicles on public roads. Nationwide, on the other hand, argues that the words "are covered" in the definition mean that off road vehicles are included in the "motor vehicle" definition when they are operated on public roads. Thus, they conclude that Julie was operating an owned, but uninsured, "motor vehicle" and her accident is expressly excluded under the policy. Insurance policies are contracts. Thus, the liability of an insurer is generally determined by the terms of the policy which it has issued. State v. Underwriters at Lloyds, London, 755 P.2d 396 (Alaska 1988). However, since an insurance policy is a contract of adhesion, it will be construed according to the principle of reasonable expectations: "The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though a painstaking study of the policy provisions would have negated those expectations." Id. (quoting R. Keeton, Basic Text on Insurance Law § 6.3(a), at 351 (1971)). Another rule of construction applicable to insurance policies is that ambiguities in the contract language should be resolved in favor of the insured. U.S. Fire Ins. v. Colver, 600 P.2d 1, 3 (Alaska 1979). However, this rule does not apply to every case in which the parties disagree as to the interpretation of a term; ambiguity exists "only when the contract, taken as a whole, is reasonably subject to differing interpretations." Modern Constr. v. Barce, Inc., 556 P.2d 528, 529 (Alaska 1976), quoted in Jarvis v. Aetna Casualty & Sur., 633 P.2d 1359, 1363 (Alaska 1981). We find that the only reasonable interpretation of the "motor vehicle" definition is that advanced by Nationwide, i.e., that the sentence on which the Hillmans rely means that motorized vehicles designed mainly for use off public roads, such as an ATY, are "motor vehicles" within the policy definition when they are used on public roads. The definitional section is distinct from the coverage provisions, and cannot logically be read as providing any substantive additions to the coverage section of the policy. Further, we have no basis for concluding from extrinsic evidence that an insured in the position of the Hillmans would have held an objectively reasonable expectation of coverage. Mrs. Hillman stated to the insurance adjuster investigating this case that she and her husband had thought that insurance was unobtainable for the ATY. B. IS THE UNINSURED OWNED VEHICLE EXCLUSION PROHIBITED BY STATUTE? Alternatively, the Hillmans argue that even if the ATV is a "motor vehicle" under the policy, the uninsured owned vehicle exclusion set out as exclusion number 4 in the uninsured motorists section of the policy, supra p. 3, is impliedly prohibited by law. In 1983, AS 28.20.440 provided: (b) The owner's policy of liability insurance shall (2) insure the person named and every other person using the vehicle . against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of the vehicle [as provided herein] . ; (3) contain coverage in the amounts set out in (2) of this subsection for the protection of the persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury or death arising out of the ownership, maintenance or use of the uninsured motor vehicle, except that this coverage may be waived in writing by the insured on or before the effective date of the policy. The Hillmans argue that the uninsured owned vehicle exclusion contravenes this statute. There is extensive case law on the question whether statutory sections similar to AS 28.20.440(b)(3) relating to the scope of uninsured motorists coverage preclude giving effect to similar uninsured owned vehicle exclusions. The Supreme Court of Arizona, in Calvert v. Farmer's Insurance Co. of Arizona, 144 Ariz. 291, 697 P.2d 684 (1985), has listed some twenty-six states which have refused to give effect to uninsured owned motor vehicle exclusions. There is also contrary authority, though it is a distinct minority view. We align ourselves with the majority position on this question. Our statute prohibited coverage narrower than that which was statutorily prescribed. As the Supreme Court of Florida stated in a similar case: Insurers or carriers writing automobile liability insurance and reciprocal uninsured motorist insurance are not permitted by law to insert provisions in the policies that they issue that exclude or reduce the liability coverage prescribed by law for the class of persons insured thereunder who are legally entitled to recover damages from owners or operators of motor vehicles because of bodily injury. Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 234 (Fla.1971). All that the statutory coverage requires is that the person injured be insured and that he or she be entitled to recover damages from the operator of the uninsured motor vehicle arising out of the use of the uninsured motor vehicle. Those conditions are met in this case. Statutory coverage bears no relationship to the occupancy of any particular motor vehicle by the person insured. For the policy to impose as a coverage limitation a requirement that the person insured not be occupying an owned uninsured vehicle plainly conflicts with the mandated coverage: The purpose of the statute is to protect completely, those willing to accept its protection, from all harm, whatever their status — passenger, driver, pedestrian— at the time of injury, produced by uninsured motorists. The only restrictions are that the plaintiff must be an insured, the defendant motorist uninsured, and that plaintiff be legally entitled to recover. Elledge v. Warren, 263 So.2d 912, 918-19 (La.App.1972). They are insured when injured in an owned vehicle named in the policy, in an owned vehicle not named in the policy, in an unowned vehicle, on a motorcycle, on a bicycle, whether afoot or on horseback or even on a pogo stick. . [O]nce uninsured motorist coverage is purchased, the insured and his relatives insured for liability have insured motorist protection under all circumstances. Uninsured motorist coverage, like no fault coverage, is personal and portable. Bradley v. Mid-Century Ins. Co., 409 Mich. 1, 294 N.W.2d 141, 152 (1980) (footnote omitted). Nationwide points to a statutory change now contained in AS 28.20.445(d): (d) Uninsured and underinsured motorists coverage does not apply to bodily injury or death or damage to or destruction of property of an insured (1) while occupying a motor vehicle owned by, but not insured by, the named insured or the insured's spouse or relative residing in the same household.... This section took effect on January 1,1985, more than a year after the accident in question. Nationwide argues that this change must be read as a clarification of pre-existing law, rather than a change in law. We reject this argument for two reasons. First, an "amendment to an unambiguous statute is generally presumed to indicate a substantive change in the law." Torkko/Korman/Engineers v. Penland Ventures, 673 P.2d 769, 773-74 (Alaska 1983). Second, the inquiry as to whether a legislature which has amended a statute intends to change or merely clarify the statute is usually fruitless. While the legislature is fully empowered to declare present law by legislation, it is not institutionally competent to issue opinions as to what a statute passed by an earlier legislature meant. If the legislature were in some form to declare its opinion as to the meaning of prior law, that declaration would be entitled to the same respect that a court would afford to, for example, an opinion of a learned commentator; that is, the court would examine the reasoning offered in support of the opinion and either reject or accept it based on the merit of the reasons given. However, instances where the legislature offers reasons in support of an opinion as to the meaning of prior law are very rare. It is possible to argue that the legislature has knowledge superior to a disinterested commentator because there may be some legislators in the current legislature who were also members of the legislature which passed the prior law and thus have special insight into the intent of the legislature. However, the force of this is dispelled when one considers that it is not permissible to allow a legislator to testify on the question of his unexpressed legislative intent or on the unexpressed legislative intent of others. Kenai Peninsula Borough School Dist. v. Kenai Peninsula Educ. Assoc., 572 P.2d 416 (Alaska 1977). In the present case, AS 28.20.440(b)(2) was enacted in 1966, whereas AS 28.20.445 was enacted in 1984. The 1984 legislation was not accompanied by any language or committee reports expressing an opinion as to the meaning of the 1966 statute. Thus, even if we could ascertain what the collective judgment of the 1984 legislature was as to the meaning of the 1966 act, we would have no grounds for giving weight to that opinion. C. MEDICAL PAYMENTS A separate section of the Hillmans' policy provided for medical payments coverage. The Hillmans contend that the medical payments coverage is applicable based on the "are covered" language in the definition of "motor vehicle." For the reasons set forth in part A above, this position is rejected. D. ARBITRATION Before ruling that the policy provided no uninsured motorist or medical payments coverage, the trial court held that Nationwide had not waived its right to arbitrate the underlying uninsured motorists claim. This ruling is challenged by the Hillmans on appeal. The ruling did not encompass the question of coverage, but included questions of negligence, comparative fault, damages, whether the driver of the truck was uninsured, and whether the claim is barred by a statute of limitations. The trial court concluded that although "Nationwide acted in bad faith in failing to disclose the availability of the arbitration procedure in four separate pieces of correspondence to Mrs. Hillman," arbitration should proceed because the Hillmans were represented by counsel who "simply made a calculated decision to attempt to obtain relief through the court system, knowing that the policy actually required dispute resolution through arbitration." Noting authority to the effect that a plaintiff cannot claim waiver when the plaintiff initiates court action in violation of the arbitration clause, the trial court concluded "that none of the litigants herein has clean hands. The balance tips in favor of submitting appropriate issues to the contractually mandated arbitration process in light of the absence of demonstrated prejudice to the plaintiffs and the strong policy favoring arbitration." We can find no error in the trial court's reasoning or conclusion and thus affirm on this point. E.HAS NATIONWIDE WAIVED DEFENSES WHICH IT DID NOT SPECIFICALLY SET FORTH IN CORRESPONDENCE WITH THE HILL-MANS? The trial court also ruled that Nationwide had not waived all of its defenses not specifically set forth in its correspondence with the Hillmans. The Hillmans claim that this was error. Waiver has been defined as an express or implied voluntary and intentional relinquishment of a known or existing right. See National Tea Co. v. Commerce & Industry Ins. Co., 119 Ill.App.3d 195, 74 Ill.Dec. 704, 456 N.E.2d 206 (1983); Arctic Contractors, Inc. v. State, 564 P.2d 30 (Alaska 1977). When waiver is to be implied from a party's conduct, that conduct must be clear and unambiguous. National Tea, 119 Ill.App.3d 195, 74 Ill.Dec. 704, 456 N.E.2d 206 (1983). The parties in this case both signed a "non-waiver agreement" which provided in part: NOW, THEREFORE, it is understood and agreed between the Insured and the Company that the Company may by its representatives proceed to investigate the said accident, negotiate the settlement of any claim, or undertake the defense of any suit growing out of said accident, without prejudice to the rights of the said Company.... This language negates an intent to waive defenses. No reasons or authorities are submitted as to why the agreement should not be given effect, and we are aware of none. We affirm the trial court's ruling. F. DID THE TRIAL COURT ERR IN SUBMITTING NATIONWIDE'S STATUTE OF LIMITATIONS DEFENSE TO THE ARBITRATOR? The Hillmans argue that the trial court erred in submitting Nationwide's statute of limitations defense to the arbitrator. Though neither party states which statute of limitations they are referring to, we assume that they are referring to the two-year period of limitations applicable to death or injury which would pertain to a claim by the Hillmans against the uninsured motorist. There is no dispute that the Hillmans initiated a claim against Nationwide within two years of the accident. The insurance policy does not require the Hillmans to file suit against the uninsured motorist, and thus Nationwide cannot use that as a defense. If the Hillmans had failed to make a timely demand on Nationwide, such that Nationwide might have lost subrogation rights against the uninsured motorist, then Nationwide might have an arguable defense. This is not the case here. Thus we reverse the trial court's determination and hold as a matter of law that there is no statute of limitations defense applicable in this case. G. DID THE TRIAL COURT ERR IN HOLDING THAT THE HILLMANS WERE NOT ENTITLED TO STACK THE COVERAGE LIMITS IN THEIR POLICY? Each of the Hillmans' three insured vehicles had uninsured motorists protection of $25,000 for bodily injury to each person. They paid a separate premium as to each vehicle for this coverage. They contend that these limits should be cumulated, or stacked, so that there is $75,000 available in uninsured motorists protection for their death claim. The policy is clear in not permitting this. It states: The insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorist payment limits. Limits apply to each insured vehicle as stated in the Declarations. In no event will any insured be entitled to more than the highest limit applicable to any one motor vehicle under this or any other policy issued by us. The Hillmans cite Werley v. United States Automobile Association, 498 P.2d 112 (Alaska 1972) for the proposition that stacking of uninsured motorist coverages should be allowed, apparently regardless of policy language. In Werley, an insured was injured by an uninsured motorist. The insured filed suit to recover under the uninsured motorist provisions of three policies covering his automobile, the driver of his automobile, and the driver's husband. We adopted the "Lamb-Weston" rule that when an "other insurance" clause conflicts with an "other insurance" clause of another policy, the clauses should both be disregarded. We held that the insured was entitled to recover for his injuries up to the full limits of all three policies, and if the loss was less than the aggregate policy limits, it should be prorated according to the limits of all policies. Werley, 498 P.2d at 117-19. The Werley decision was based on several factors. First, the "other insurance" provisions were circular. Id. at 117. Second, the language of the policies was ambiguous. Id. at 116. Third, not allowing stacking would result in a windfall for the insurance companies since they would have received premiums for no risk. Id. at 119. This case is different. Here there is no circularity in language nor any ambiguity. The policy is clear in limiting coverage to the highest limit applicable to any of the insured vehicles. Further, there is no windfall, since the Hillmans' separate pre miums bought protection for non-relatives who might be injured in each of the covered automobiles. See Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679 (Texas 1974). For these reasons, we affirm the trial court's holding that the Hillmans are not entitled to stack the coverage in their policy. H. WRONGFUL DEATH The Hillmans assert that they are entitled to assert individual claims for the wrongful death of their daughter. The trial court did not reach a decision on this issue, thus we have no occasion to address it. REVERSED and REMANDED for further proceedings in accordance with this opinion. . The Hillmans concede that the ATV was a motor vehicle "designed for use mainly off pub-lie roads" and that it was "used on" a public road at the time of the accident. . At the time of the accident no uninsured motorist coverage written in Alaska could be narrower than prescribed by this statute. AS 21.-89.020. . See Stephens v. State Farm Mut. Auto. Ins. Co., 508 F.2d 1363 (5th Cir.1975); State Farm Auto Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974); Aetna Ins. Co. v. Hurst, 2 Cal.App.3d 1067, 83 Cal.Rptr. 156 (1969); Harvey v. Travelers Indemn. Co., 188 Conn. 245, 449 A.2d 157 (1982); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla.1971); Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga.App. 285, 196 S.E.2d 485 (1973), aff'd, 231 Ga. 269, 201 S.E.2d 444 (App.1973); Kau v. State Farm Mut. Ins. Co., 58 Haw. 49, 564 P.2d 443 (1977); Doxtater v. State Farm Mut. Auto. Ins. Co., 8 Ill.App.3d 547, 290 N.E.2d 284 (1972); State Farm Mut. Auto. Ins. Co. v. Robertson, 156 Ind.App. 149, 295 N.E.2d 626 (1973); Lindahl v. Howe, 345 N.W.2d 548 (Iowa 1984); Barnett v. Crosby, 5 Kan.App.2d 98, 612 P.2d 1250 (1980); Elledge v. Warren, 263 So.2d 912 (La.App.1972); Pennsylvania Nat'l Mut. Casualty Ins. Co. v. Gartelman, 288 Md. 151, 416 A.2d 734 (1980); Bradley v. Mid-Century Ins. Co., 409 Mich. 1, 294 N.W.2d 141 (1980); Nygaard v. State Farm Mut. Auto. Ins. Co., 301 Minn. 10, 221 N.W.2d 151 (1974); Lowery v. State Farm Mut. Auto. Ins. Co., 285 So.2d 767 (Miss.1973); Otto v. Farmers Ins. Co., 558 S.W.2d 713 (Mo.App.1977); Jacobson v. Implement Dealer Mut Ins. Co., 196 Mont. 542, 640 P.2d 908 (1982); State Farm Mut Auto. Ins. Co. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971); Beek v. Ohio Casualty Ins. Co. 73 N.J. 185, 373 A.2d 654 (1977), aff'd, 135 N.J.Super. 1, 342 A.2d 547 (App.Div.1975); Chavez v. State Farm Mut. Auto. Ins. Co., 87 N.M. 327, 533 P.2d 100 (1975); Ady v. West American Ins. Co., 69 Ohio St.2d 593, 433 N.E.2d 547 (1981); Cothren v. Emcasco Ins. Co., 555 P.2d 1037 (Okla.1976); State Farm Mut. Auto. Ins. Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978); Hogan v. Home Ins. Co., 260 S.C. 157, 194 S.E.2d 890 (1973); Allstate Ins. Co. v. Meeks, 207 Va. 897, 153 S.E.2d 222 (1967); Touchette v. Northwestern Mut. Ins. Co., 80 Wash.2d 327, 494 P.2d 479 (1972); Richards v. State Farm Mut. Auto. Ins. Co., 122 Wis.2d 172, 361 N.W.2d 680 (1985); see also A. Widiss, A Guide to Uninsured Motorist Coverage, § 2.9 (1969 & Supp.1981); Annotation, Uninsured Motorist Coverage: Validity of Exclusion of Injuries Sustained By Insured While Occupying "Owned'' Vehicle Not Insured By Policy, 30 A.L.R.4th 172 (1984). . With the decision in Calvert, Arizona became the twenty-seventh state. . See Dullenty v. Rocky Mountain Fire & Casualty, 111 Idaho 98, 721 P.2d 198 (1986); Employers' Fire Ins. Co. v. Baker, 119 R.I. 734, 383 A.2d 1005 (1978); Broach v. Members Ins. Co., 647 S.W.2d 374 (Tex.App.1983). . See Nuclear Installation v. Nuclear Services, 468 F.Supp. 1187, 1194 (E.D.Pa.1979). . Alaska Statute 09.55.580. . Alaska Statute 09.10.070. . Lamb-Weston Inc. v. Oregon Auto. Ins. Co., 219 Or. 110, 341 P.2d 110, reh'g. denied, 219 Or. 110, 346 P.2d 643 (1959).

10381071

P.R.J., A Minor, Appellant, v. STATE of Alaska, Appellee

P.R.J. v. State

1990-02-16

No. 1015

123

125

787 P.2d 123

787

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

P.R.J., A Minor, Appellant, v. STATE of Alaska, Appellee.

P.R.J., A Minor, Appellant, v. STATE of Alaska, Appellee. No. 1015. Court of Appeals of Alaska. Feb. 16, 1990. Allan Beiswenger, Robinson, Beiswenger & Ehrhardt, Soldotna, for appellant. Carmen E. Clark, Asst. Dist. Atty., James L. Hanley, Dist. Atty., Kenai, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

998

6443

OPINION COATS, Judge. P.R.J. was committed to McLaughlin Youth Center after his probation was revoked. The state's custody of P.R.J. was extended until two years after the disposition hearing. P.R.J. appeals, claiming that placement at McLaughlin was not the least restrictive alternative available' and arguing that the trial court could not extend its jurisdiction for the two-year period. We affirm. P.R.J. was adjudicated delinquent on January 13, 1988. While disposition of that case was pending, P.R.J. ran away from the foster home where he had been staying. After the delinquency proceedings, P.R.J. was placed at the Kenai Peninsula Community Care Center (Kenai Center). P.R.J. ran away from the center three times during 1988. He was next placed in a Kenai foster home. P.R.J. was returned to the Kenai Center in March 1989, however, because of drug use while at the foster home. P.R.J. left the Kenai Center the same day that he returned. He was located in Anchorage approximately one month later and indicated to his probation officer that he would attempt to run away again. The state petitioned to modify or revoke probation, recommending that P.R.J. be placed at McLaughlin. A disposition hearing began on May 23, 1989, before Superior Court Judge James A. Hanson. The hearing was continued so that P.R.J. could be considered by "ARCH," a treatment program which ultimately rejected him. At the June 1, 1989, continuation of the disposition hearing, Judge Hanson questioned the state and P.R.J.'s counsel about programs and facilities available through Alaska Children's Services and Outside programs such as Rocky Mountain and Pathfinders. P.R.J.'s probation officer told Judge Hanson that Alaska Children's Services could not provide a viable alternative because its facilities were not secured. Outside programs were unavailable because the state has no contracts with such facilities. After considering these alternatives, as well as placement at McLaughlin, Judge Hanson concluded that placement in a correction or detention facility was the least restrictive alternative available. He recognized that P.R.J. required treatment for substance abuse which apparently would be available at McLaughlin. The judge also specifically stated that placement in a foster home would be inappropriate for P.R.J. He entered a formal written order committing P.R.J. to the custody of the Department of Health and Social Services until June 1, 1991. Judge Hanson was required to select the least restrictive disposition alternative that addressed P.R.J.'s treatment needs and protected the public. Delinquency Rule 23(d). The trial judge must "consider and reject less restrictive alternatives prior to imposition of more restrictive alternatives." R.P. v. State, 718 P.2d 168, 169 (Alaska App.1986) (emphasis in original). The state bears the burden of showing that the disposition was the least restrictive alternative under a preponderance standard, Delinquency Rule 11(e), and we review the disposition as a question of law. Matter of J.H., 758 P.2d 1287, 1291 (Alaska App.1988). P.R.J. seeks to analogize his case to J.H. where we held that institutionalization of a delinquent minor who had demonstrated a propensity for running away was not supported by the evidence as the least restrictive alternative. 758 P.2d at 1292-93. J.H. is easily distinguishable from P.R.J.'s case, however. Unlike P.R.J., J.H. had been accepted by a residential treatment facility and placement there had been endorsed by the state. Additionally, J.H. indicated her desire to receive treatment at the residential facility, whereas P.R.J. stated that he planned to run away again. Also unlike P.R.J., J.H. had never run away from a treatment facility, and there was no evidence that she would necessarily fail in a residential treatment program; on the other hand, P.R.J. had been unsuccessful at both the Kenai Center and in foster homes. Compare R.N. v. State, 770 P.2d 301, 303-04 (Alaska App.1989) (upholding detention as least restrictive alternative where juvenile indicated intention to flee from non-detentional settings). We therefore agree with Judge Hanson that placement at McLaughlin was the least restrictive alternative available. P.R.J. also argues that Judge Hanson was not empowered to extend custody of P.R.J. until two years after the disposition hearing. Alaska Statute 47.10.080 limits the trial court's authority after an adjudication of delinquency to no more than two years. However, when a juvenile is on probation, the state may petition for and the court may grant in a hearing, "two-year extensions of supervision which do not extend beyond the child's 19th birthday if the extension is in the best interests of the minor and the public." AS 47.10.-080(b)(2)(A). Additionally, AS 47.10.100(a) provides that the court retains jurisdiction over the minor and is empowered on its own motion to "enlarge a judgment or order . after reasonable notice to interested parties." See also Delinquency Rule 24(d). The record demonstrates that Judge Hanson indicated his intention to consider extending custody of P.R.J. at the May 23, 1989, hearing and then heard argument on June 1 from P.R.J.'s counsel and the state before deciding the issue. Accordingly, the requirements of the statutes were satisfied and the extension of custody was proper. The disposition is AFFIRMED. . P.R.J. contends that Judge Hanson made insufficient findings to support the disposition of P.R.J.'s case. See Delinquency Rule 23(c). We disagree. Judge Hanson's oral remarks adequately explain his reasoning and sufficiently demonstrate that he considered and rejected less restrictive alternatives prior to the disposition of the case. . P.R.J. also argues that two prior extensions of his probation were improper. His original adjudication authorized placement expiring on January 13, 1990. Since Judge Hanson's extention of the detention period on June 1, 1989, was proper and occurred before the expiration of the initial disposition, the propriety of the earlier extensions is moot.

10393790

Phillip C. LAKE; Cynthia B. Lake; Jerry R. Coburn; Mary L. Coburn; and Wormald Fire Systems, Inc.; Petitioners, v. CONSTRUCTION MACHINERY, INC.; JLG Industries, Inc.; McDonald Industries, Inc.; and McDonald Industries Alaska, Inc.; Respondents

Lake v. Construction Machinery, Inc.

1990-02-23

No. S-3027

1027

1031

787 P.2d 1027

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

Phillip C. LAKE; Cynthia B. Lake; Jerry R. Coburn; Mary L. Coburn; and Wormald Fire Systems, Inc.; Petitioners, v. CONSTRUCTION MACHINERY, INC.; JLG Industries, Inc.; McDonald Industries, Inc.; and McDonald Industries Alaska, Inc.; Respondents.

Phillip C. LAKE; Cynthia B. Lake; Jerry R. Coburn; Mary L. Coburn; and Wormald Fire Systems, Inc.; Petitioners, v. CONSTRUCTION MACHINERY, INC.; JLG Industries, Inc.; McDonald Industries, Inc.; and McDonald Industries Alaska, Inc.; Respondents. No. S-3027. Supreme Court of Alaska. Feb. 23, 1990. Robert M. Libbey, Libbey & Suddock, Anchorage, for petitioners, Phillip C. Lake, Cynthia B. Lake, Jerry R. Coburn and Mary L. Coburn. Gary N. Bloom, Harbaugh & Bloom, Spokane, Wash., for petitioners, Jerry R. Co-burn and Mary L. Coburn. Constance Cates Ringstad and Winston S. Burbank, Call, Barnett & Burbank, Fairbanks, for petitioner, Wormald Fire Systems, Inc. Michael C. Geraghty and David D. Floer-chinger, Staley, DeLisio, Cook & Sherry, Inc., Anchorage, for respondent, Const. Machinery, Inc. R. Craig Hesser, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for respondent, JLG Industries, Inc. Paul H. Ashton and Colleen J. Moore, Guess & Rudd, Anchorage, for respondents, McDonald Industries, Inc. and McDonald Industries, Alaska, Inc. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

2499

15804

OPINION BURKE, Justice. An employee injured in the course of his employment brought a damage action against several third parties. He filed this petition after the superior court ruled that the third parties were entitled to assert, as a partial defense, that the plaintiffs employer was negligent. The question that we must decide is whether the employer is one of the parties among whom the finder of fact must allocate fault pursuant to the rule of modified joint and several liability found in AS 09.17.080, thereby reducing the liability of the third parties to the employee. For the reasons set forth below we hold that the employer's negligence, if any, is relevant, but that its use by the jury is limited. I The underlying facts are not in dispute. Phillip Lake suffered an injury in the course and scope of his employment with Wormald Fire Systems, Inc., when he fell fifty feet from a manlift. Lake filed products liability claims against the manlift manufacturer, JLG Industries, Inc.; the distributor, Construction Machinery, Inc.; and several intermediate vendors. The distributor filed a third party complaint against the employer on a theory of express indemnity. The distributor defended partly on the ground that the finder of fact should attribute negligence among all parties allegedly responsible for Lake's injury, including the employer, and that the distributor's ultimate liability to Lake should be determined pursuant to the rule of modified joint and several liability found in AS 09.17.080(d). Lake moved to strike the defense, Alaska R.Civ.P. 12(f), arguing that the exclusive liability provision of the Workers' Compensation Act, AS 23.30.055, precluded the trier of fact from considering the negligence of the employer. The superior court denied the motion to strike and a subsequent motion for reconsideration. We granted Lake's petition for review. II Under the Alaska Workers' Compensation Act, AS 23.30.005-.270, an employer is liable to pay compensation to an employee injured in the course and scope of employment, regardless of fault. AS 23.30.045(a), (b). In return, the employer is relieved from all further liability to the employee or any other person otherwise entitled to recover damages from the employer on account of the injury. AS 23.30.055. An employee who believes that a third party is liable for the employee's injuries may file suit to recover damages from the third party whether or not the employee has received compensation payments. AS 23.30.015(a). If the employee recovers damages, the employee must reimburse the employer for compensation paid and the cost of benefits provided, and any excess recovery is credited against future compensation payments. AS 23.30.015(g). If the employee fails to file suit within one year of receiving a compensation award, the employer or its insurance carrier may sue the third party to recover damages. AS 23.30.-015(b), (i), AS 23.30.050. The exclusive liability provision precludes the assertion of a contribution claim against the employer, even if the employer's negligence was a proximate cause of the employee's injury. State v. Wien Air Alaska, 619 P.2d 719, 720 (Alaska 1980); cf. AS 09.16.010(a), (b). In Arctic Structures v. Wedmore, 605 P.2d 426 (Alaska 1979), an employee who collected workers' compensation benefits sued three third parties for damages. The third parties argued that, under the recently-adopted rule of pure comparative negligence, the employee's recovery should be reduced by the percentage of fault attributable to the employer, and that each third party should be liable to the employee only for that portion of the total liability corresponding to its percentage of fault. We ruled that (1) the common law rule of joint and several liability survived judicial adoption of the doctrine of pure comparative negligence, id. at 428-35, (2) third parties may not reduce their total liability to the employee in proportion to the percentage of negligence attributable to the employer, id. at 435-38, and (3) the employer is entitled to full reimbursement for compensation paid to the employee, even if the employer's negligence is a proximate cause of the employee's injury, id. at 438-40. A year later we reaffirmed the decision in Arctic Structures, stating: We have considered our holdings in Arctic Structures and, although we agree with the State that under these holdings injustices can arise in many cases, we are unpersuaded that we should alter these holdings in the case before us. As we pointed out in Arctic Structures, we are most reluctant to modify an existing legislative scheme in order to achieve an equitable result. 605 P.2d at 440. The statutes with which we are concerned express major policy decisions which are peculiarly within legislative competence. For example, we have no knowledge of the financial impact of deviating from the exclusive liability provision of the workmen's compensation statute. That is a matter which could be clarified by legislative hearings, a process not available to this court. We have no comprehension of the economic tradeoffs which might be involved in a major overhaul of these statutes. Decisions concerning such matters are typically a legislative function. Wien, 619 P.2d at 720. In 1986, the legislature modified the rule of joint and several liability. AS 09.17.-080(d). Under the new statute, the finder of fact must fix the damage awards, and determine the respective percentages of fault. Id. The court then enters judgment on the basis of modified joint and several liability. AS 09.17.080(c), (d). Ill Petitioners contend that the superior court erred in refusing to strike the challenged defense because AS 09.17.080(a)(2) does not specifically include statutorily immune employers in the group among whom the total fault must be allocated. Respondents contend that the purpose of AS 09.-17.080 will be frustrated if the employer's fault is not considered. This is a question of statutory interpretation subject to the independent judgment standard of review. Norton v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1092 (Alaska 1985). We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). The interpretation of a statute begins with an examination of the language used. Ordinarily, an unambiguous statute is enforced as written without judicial construction or modification; however, this rule is not controlling when a seemingly unambiguous statute must be considered in conjunction with another act. Hafling v. Inlandboatmen's Union, 585 P.2d 870, 872 (Alaska 1978). In that case, we will examine the legislative history and adopt a reasonable construction which realizes legislative intent, avoids conflict or inconsistency, and gives effect to every provision of both acts. Id. at 873, 875, 877. Thus, we will presume that the legislature enacted AS 09.17.080 with the Workers' Compensation Act in mind. When we decided Arctic Structures, we noted that the view espoused in Associated Construction & Engineering Co. v. Workers' Compensation Appeals Board, 22 Cal.3d 829, 150 Cal.Rptr. 888, 587 P.2d 684 (1978), had "considerable merit." 605 P.2d at 440. Respondents argue that the legislature recognized the merit of the California rule and incorporated it into the law of Alaska when it adopted AS 09.17.080. The legislature's intent is not apparent from the plain language of AS 09.17.-080(a)(2). Although the legislature has authorized the finder of fact to allocate fault among "each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.16.040," an employer does not fit easily within any of these categories. When the legislature enacted AS 09.17.080, it left intact the exclusive liability and employer reimbursement provisions, knowing that we had declined to abrogate the rules set forth in those statutes in the past, even though developments in the principles of general tort law might suggest that course. To the contrary, we have consistently and repeatedly refused to alter the comprehensive statutory scheme governing employers' rights, and liabilities for workplace accidents. Absent a clear indication of legislative intent, we decline to retreat from the rule of law set forth in Arctic Structures v. Wedmore. It is irrelevant that the employer in this case is a third-party defendant based on an express indemnity agreement. As a result of the exclusive liability provision, an employer may be joined as a third-party defendant only when another party asserts an express indemnity claim against it. See Manson-Osberg Co. v. State, 552 P.2d 654, 658-59 (Alaska 1976); see also Providence Washington Ins. Co. v. DeHavilland Aircraft Co. of Canada, 699 P.2d 355, 357-58 (Alaska 1985); Golden Valley Elec. Ass'n v. City Elec. Serv., 518 P.2d 65, 69 (Alaska 1974). However, the fact that the employer is a third-party indemnity defendant in any particular case is a fortuity which does not alter the rule applicable to employer fault generally, even though it might affect the ultimate liability of the parties to the agreement. Our refusal to abrogate the workers' compensation scheme does not necessarily render evidence of employer negligence inadmissible. A third party tortfeasor may escape liability by proving that it was not negligent or that its negligence did not proximately cause the employee's injury. Thus, evidence of the employer's negligence may be relevant and admissible to prove that the employer was entirely at fault, or that the employer's fault was a superseding cause of the injury. However, AS 09.17.080 presents a difficult factual choice: the finder of fact may allocate all or none of the total fault to the employer. It may not allocate only a portion of the total fault to the employer. Moreover, members of the bench and bar must take care in preparing jury instructions to prevent a panel from attributing to the employee any negligence of the employer. The decision of the superior court is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. . The distributor's sixth affirmative defense stated: Pursuant to AS 09.17.080, any amount of damages which the plaintiffs may have incurred as a result of the aforementioned accident must be reduced by the percentage of fault attributable to [the employer]. . The caption of this opinion lists as "petitioners" all parties who appeared and argued in favor of reversing the order below; conversely, the "respondents" are all parties who argued that the order should be affirmed. . AS 23.30.055 provides in part: The liability of an employer prescribed in AS 23.30.045 is exclusive and in place of all other liability of the employer and any fellow employee to the employee, the employee's legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from the employer or fellow employee at law or in admiralty on account of the injury or death. . AS 23.30.015(g) provides in part: If the employee . recovers damages from the third person, the employee . shall promptly pay to the employer the total amounts paid by the employer under (e)(1)(A), (B), and (C) of this section, insofar as the recovery is sufficient after deducting all litigation costs and expenses. Any excess recovery by the employee . shall be credited against any amount payable by the employer thereafter. . Kaatz v. State, 540 P.2d 1037 (Alaska 1975). . AS 09.17.080 provides in part: (a) In all actions involving fault of more than one party to the action, including third- party defendants and persons who have been released ünder 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. (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 joint and several liability, except that a party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party. . In Associated Construction, the California Supreme Court ruled that the total liability for the employee's injury should be equitably allocated between the employer and third party tort-feasors. 150 Cal.Rptr. at 895-96, 587 P.2d at 691-92. The third parties' liability to the employee is reduced by the employer's share of the fault. Id. The employer's right to credit or reimbursement is limited to the amount by which his compensation liability exceeds his proportional share of the injured employee's recovery. Id. . See Uniform Comparative Fault Act § 2 comment, § 6 comment, 12 U.L.A. 46, 53 (Supp. 1989). . The workers' compensation statute was never mentioned during the house and senate debates concerning the 1986 tort reform provisions, ch. 139, § 1, SLA 1986. Alaska State Senate Floor Debate (May 5, 1986) [hereinafter Senate Debate]; Alaska State House Floor Debate (May 8, 1986) [hereinafter House Debate]. It is clear that the legislature was attempting to alleviate a perceived "crisis" in insurance rates and availability. See Senate Debate (remarks of Sens. Kelly and Faiks; House Debate (remarks of Rep. Navarre). The section on modified joint and several liability was "the heart and soul of the bill." Senate Debate (remarks of Sens. Kelly, Faiks and Halford); House Debate (remarks of Reps. Navarre, Hanley, and Pignalberi). Legislators who endorsed a form of modified joint and several liability argued that it represented a fair compromise limiting the potential liability of a tortfeasor guilty of only a small degree of negligence while at the same time permitting an injured plaintiff'to recover a substantial portion of his or her damages. Senate Debate (remarks of Sen. Josephson); House Debate (remarks of Reps. Navarre and Miller).

10398041

The CITIZENS FOR THE PRESERVATION OF THE KENAI RIVER, INC., Appellant/Cross-Appellee, v. William SHEFFIELD, Governor, State of Alaska; State of Alaska, Department of Natural Resources; Esther Wunnicke, Commissioner, Department of Natural Resources, Appellees/Cross-Appellants

Citizens for the Preservation of the Kenai River, Inc. v. Sheffield

1988-07-22

Nos. S-2216, S-2244

624

628

758 P.2d 624

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

The CITIZENS FOR THE PRESERVATION OF THE KENAI RIVER, INC., Appellant/Cross-Appellee, v. William SHEFFIELD, Governor, State of Alaska; State of Alaska, Department of Natural Resources; Esther Wunnicke, Commissioner, Department of Natural Resources, Appellees/Cross-Appellants.

The CITIZENS FOR THE PRESERVATION OF THE KENAI RIVER, INC., Appellant/Cross-Appellee, v. William SHEFFIELD, Governor, State of Alaska; State of Alaska, Department of Natural Resources; Esther Wunnicke, Commissioner, Department of Natural Resources, Appellees/Cross-Appellants. Nos. S-2216, S-2244. Supreme Court of Alaska. July 22, 1988. Wayne Anthony Ross, Ross, Gingras, Bailey & Miner, Anchorage, for appellant/ cross-appellee. Michael J. Frank and Kenneth C. Powers, Asst. Attys. Gen., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellees/cross-appellants. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

2191

13632

OPINION MOORE, Justice. The Citizens for the Preservation of the Kenai River, Inc. (CPKR) challenged the validity of a state regulation promulgated by the Department of Natural Resources (DNR) that prohibits the operation of boats with motors of more than 35 horsepower on the Kenai River. See 11 AAC 20.860 (eff. 5/11/85; am. 4/25/86). The superior court granted summary judgment to the State. The court denied the State's motion for attorneys' fees on the ground that CPKR was a public interest litigant. CPKR appeals, arguing that the superior court incorrectly assigned to CPKR the burden of proving the invalidity of the regulation, and also that the regulation is invalid and unconstitutional. On cross-appeal, the State argues- that the superior court erred in denying its motion for attorney's fees and that CPKR is not a public interest litigant. We affirm. I. The regulation at issue in this case provides in part: BOAT MOTOR USE. (a) Except as prohibited by 11 AAC 20.865, the operation of a boat by the use of a boat motor is allowed in the Kenai River Special Management Area as follows: (1) the operation of a boat by use of a single boat motor with a manufacturer's horsepower rating of no greater than 50 horsepower is allowed until May 1, 1987; and (2) the operation of a boat by use of a single boat motor with a manufacturer's horsepower rating of no greater than 35 horsepower is allowed beginning May 1, 1987. 11 AAC 20.860. The superior court correctly placed the burden of proving the invalidity of the regulation on CPKR. See State v. Alyeska Pipeline Serv. Co., 723 P.2d 76, 78 (Alaska 1986) ("[a] regulation is presumptively valid, therefore the burden of prov: ing invalidity is on the party challenging the regulation"); Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1245 n. 9 (Alaska 1979); Union Oil Co. of Cal. v. State, Dep't of Natural Resources, 574 P.2d 1266, 1271 (Alaska 1978). In Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971), we established a framework for reviewing a challenge to the validity of an administrative regulation. We stated: First, we will ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency.... Second, we will determine whether the regulation is reasonable and not arbitrary. Id. at 911. We are not persuaded by CPKR's arguments that 11 AAC 20.860 is unreasonable, arbitrary, or not rationally related to legislative goals. The record is replete with evidence that the regulation was the product of a careful, reasoned, and lawful decisionmaking process aimed at satisfying the legislative goals. The DNR promulgated 11 AAC 20.860 pursuant to rulemaking authority conferred by AS 41.20.504(a). Among the stated legislative purposes is "to manage recreational uses" in the Kenai River area. AS 41.21.500. In view of the DNR's earlier findings of a "trend toward larger, louder, and faster riverboats" on the Kenai River having "possible adverse impacts such as accelerated bank erosion, habitat destruction, noise and safety concerns," we think 11 AAC 20.860 is consistent with and reasonably necessary to carry out the legislature's purposes. Moreover, the regulation is patently reasonable: a given boat with a larger engine is capable of going faster, posing more danger, and producing more noise than the same boat with a smaller engine. While horsepower is certainly not the only factor contributing to problems the legislature directed the DNR to address, there has never been any prohibition against an administrative agency attacking such problems one step at a time. As for CPKR's claim that 11 AAC 20.860 violates article VIII, sections 2 and 3 of the Alaska Constitution, CPKR did not raise it below and does not adequately brief it in this appeal. Therefore we do not address it. See, e.g., State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980). II. On cross-appeal, the State argues that the superior court erred in determining that CPKR was a public interest litigant and in failing to award attorneys' fees to the State. We have applied the abuse of discretion standard in reviewing a trial court's finding that a litigant has public interest status. See, e.g., Kenai Lamber Co. v. LeResche, 646 P.2d 215, 222-23 (Alaska 1982) (applying the abuse of discretion standard, we found the trial court "could have concluded that [Kenai Lumber Co.] had sufficient economic reasons to challenge the amendment regardless of the grounds for the challenge," and then upheld the trial court's award of fees against Kenai Lumber Co.); Sisters of Providence in Wash., Inc. v. State, Dep't of Health and Social Servs., 648 P.2d 970, 980 (Alaska 1982) (in which we were persuaded "that the superior court could have concluded that Providence had sufficient private economic reasons to litigate," and then affirmed the trial court's finding that the case did not fit within the public interest exception to fee awards). Attorneys' fees should not be awarded under Civil Rule 82 against a public interest litigant. Kenai Lumber Co., 646 P.2d at 222. We have set forth a four-part test for determining whether a party is a public-interest litigant: (1) whether the case is designed to effectuate strong public policies; (2) whether, if the plaintiff succeeds, numerous people will benefit from the lawsuit; (3) whether only a private party could be expected to bring the suit; and (4) whether the litigant claiming public interest status would lack sufficient economic incentive to bring the lawsuit if it did not involve issues of general importance. Alaska Survival v. State, Dep't of Natural Resources, 723 P.2d 1281, 1292 (Alaska 1986) (quoting Oceanview Homeowners Ass'n v. Quadrant Constr. and Eng'g, 680 P.2d 793, 799 (Alaska 1984)). The superior court expressly found that CPKR is a public interest litigant but gave no explanation for its finding other than by citing Alaska Survival. We now review that finding. The first element of the four-part public interest test is whether the case is designed to effectuate strong public policies. While public policy does not favor high-horsepower motors per se, public policy does favor recreational use of rivers by the public and access to riparian lands. The trial court could have found that this case was "designed to effectuate strong public policies." The second element of the public interest test is whether numerous people will benefit if the party bringing the suit succeeds. This is satisfied in this case. The third element is whether only a private party could be expected to bring this suit. The State suggests that the federal government conceivably could have sued the State for interference with its commerce powers and its navigational servi tude. As a practical matter, we do not find this persuasive.. Thus, we conclude that the trial court could have found that this requirement was satisfied. The final element is whether CPKR would lack sufficient economic incentive to bring the lawsuit if it did not involve issues of general importance. On one hand, CPKR, as a non-profit corporation formed solely for the purpose of prosecuting this case, has no economic interest in the outcome of the case. CPKR seeks no money damages, and evidently owns no riparian property, outboard motors, or anything else that would be affected by this litigation. On the other hand, CPKR represents the interests of individuals who themselves may have sufficient economic interest to rule out the possibility of public interest status. In this case, even if it is appropriate to look through the shell corporation to the interests of those individuals the corporation represents, we would affirm the court's finding of public interest status. The economic incentives of the members represented by CPKR vary considerably from person to person. For example, one member of CPKR, who is a lodge owner and used boat dealer, estimated in an affidavit that he will suffer a loss of $20,000 to $30,000 per year as a result of the 35 horsepower limitation. Several other members claimed lesser losses from inability to use or sell their large motors, and the like. We can speculate that those members that did not submit affidavits had even smaller economic incentives. However, whether an entity is a public interest litigant cannot depend on the interests of a single member. Rather, it must depend on the interests of typical members. We find that the superi- or 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. Accordingly, we AFFIRM the superior court on the merits and on the attorneys' fees. . We reject CPKR's argument that our holding in Kingery v. Chapple, 504 P.2d 831, 835-36 (Alaska 1972) suggests that the State should bear the initial burden here. The Kingery case involved a constitutional challenge to regulations requiring that motorcyclists wear a helmet and goggles, and that motorcycles be equipped with mirrors and a windshield. Id. at 833. The regulations were designed to promote the safety of motorcycle operators and the traveling public. Id. We carved a narrow exception to the general rule that the plaintiff carries the burden of proving the invalidity of a regulation, stating: [T]he burden of proving the negative of a public-protection purpose raises special problems for the individual challenger of administrative regulations. Hence we conclude that in such cases the state should be required to come forward with at least prima facie evidence that such a reasonable relation to purpose exists before the burden shifts to the complainant. Since then, we have not ruled on the continued vitality of that exception. Nor do we do so in the present case, because the prerequisite is not satisfied: unlike in Kingery, the regulation at issue in this case evidently had numerous purposes, including promoting public safety, but also reducing noise, habitat destruction, bank erosion, and conflicts among user groups. We hold that the exception to the usual rule would not apply under these circumstances. . Of course, as CPKR observes, one boat may go faster than another even though both have engines of the same horsepower, depending on how fast the drivers choose to go, size and weight of the boats, hull configuration, and so on. . CPKR's second amended complaint alleges that [CPKR] represents the interests of more than 100 individuals who are a cross-section of Kenai River boat owners and land owners who are directly affected . because ment-bers with boat engines larger than 35 horsepower will be forced to obtain smaller boats and engines and in some instances because of the size limitations be denied access to the river itself.

10395645

STATE of Alaska, Appellant, v. Mitchell STRAETZ, Appellee

State v. Straetz

1988-08-05

No. A-2479

133

135

758 P.2d 133

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

STATE of Alaska, Appellant, v. Mitchell STRAETZ, Appellee.

STATE of Alaska, Appellant, v. Mitchell STRAETZ, Appellee. No. A-2479. Court of Appeals of Alaska. Aug. 5, 1988. Ernst Wendl, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for appellant. Charles R. Pengilly, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

649

4017

OPINION BRYNER, Chief Judge. Mitchell Straetz drove a Honda three-wheeler on University Avenue in Fairbanks on December 7, 1987, while his license was in suspended status for failure to obtain SR-22 insurance. He was charged with driving while license suspended (DWLS) in violation of AS 28.15.291(a). He filed a motion to dismiss prosecution, which was granted by District Court Judge Christopher E. Zimmerman. The state appeals Judge Zimmerman's order of dismissal. Under AS 28.15.291(a), a person may not drive a motor vehicle on a highway when that person's license has been suspended. "Motor vehicle" is defined in AS 28.40.100(a)(7) as "a vehicle which is self-propelled except a vehicle moved by human or animal power." The state contends that a common sense construction of AS 28.15.-291(a) prohibits a person with a suspended license from operating any motor vehicle on a highway or vehicular way. Straetz argues that he did not need a license to drive the three-wheeler. State v. Stagno, 739 P.2d 198, 201 (Alaska App.1987). Straetz contends that since it is legal to operate an off-road vehicle without a license, the legislature could not have intended to penalize him for doing so. While it is true that under AS 28.15.011 the driver of a three-wheeler is not required to have a driver's license, the express and unambiguous terms of AS 28.15.-291(a) prohibited Straetz from driving any motor vehicle on a highway once his operator's license was suspended. The prohibition did not hinge on the nature of the motor vehicle, but rather on Straetz's demonstrated danger as a driver, as evidenced by his license suspension. Alaska Statute 28.15.291(a) creates no exception that would allow a driver whose license has been suspended to drive on a highway in a motor vehicle that does not require a licensed driver. The statute, on its face, applies to all motor vehicles. Subsection (a) provides, in relevant part: A person may not drive a motor vehicle on a highway . when that person's driver's license . has been canceled, suspended or revoked[.] We see nothing irrational in the legislature's apparent conclusion that a person whose license has been suspended should be prohibited from driving any motor vehicle on a highway, even one for which an operator's license would not otherwise be required. Stagno is readily distinguishable. There, the defendant was convicted of driving while intoxicated (DWI) for operating an airboat on a highway. At issue was whether the sentencing court was empowered to suspend Stagno's license as a result of the conviction. We concluded that the express statutory language governing suspension of licenses for DWI authorized suspension only where the DWI involved the driving of a vehicle for which a license is required. Stagno, 739 P.2d at 200-01. See also AS 28.15.181(b)(2), (c); AS 28.35.030. By contrast, in the present case, the express statutory language contains no comparable restriction, and it is undisputed that Straetz's license was originally suspended for his driving of a motor vehicle for which a license was required. We conclude that the district court erred in dismissing the charge against Straetz. The order is VACATED and the case is REMANDED for further proceedings in the district court. . Straetz contends that the state cannot appeal from the trial court's order. The dismissal is based upon the trial court's conclusion that the state's complaint does not state a criminal charge under which Straetz can be prosecuted. We conclude that the order of dismissal is appealable under Kott v. State, 678 P.2d 386, 388-90 (Alaska 1984).

10399250

Bruce SIROTIAK, Appellant, v. H.C. PRICE COMPANY, H.C. Price Construction Company, ARCO Alaska, Inc., and Gary Townsend, Appellees

Sirotiak v. H.C. Price Co.

1988-07-15

No. S-1965

1271

1279

758 P.2d 1271

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

Bruce SIROTIAK, Appellant, v. H.C. PRICE COMPANY, H.C. Price Construction Company, ARCO Alaska, Inc., and Gary Townsend, Appellees.

Bruce SIROTIAK, Appellant, v. H.C. PRICE COMPANY, H.C. Price Construction Company, ARCO Alaska, Inc., and Gary Townsend, Appellees. No. S-1965. Supreme Court of Alaska. July 15, 1988. John Suddock, Libbey & Suddock, Anchorage, for appellant. John W. Pletcher, III, Larry Z. Moser, Pletcher & Slaybaugh, Anchorage, for ap-pellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

4637

28577

OPINION COMPTON, Justice. This appeal arises from the denial of a motion for new trial in a personal injury case. Bruce Sirotiak claims he suffered a lower back injury in a slow speed, two-truck collision. At trial, Sirotiak asked for over $1 million dollars in damages; he received approximately $16,000. On appeal he claims that the jury was biased against him and that he was denied the opportunity to present an effective rebuttal case. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. THE ACCIDENT. On the morning of September 15, 1982, after completing his night shift, Sirotiak was involved in a two-truck accident. While driving an ARCO pick-up on the North Slope, Sirotiak headed northbound on an icy gravel roadway at approximately 15 miles per hour. As he approached an intersection at an alleyway controlled by a stop sign, he saw a pick-up driven by Gary Townsend, an H.C. Price Company (Price) employee, approaching from the east. Si-rotiak realized that Townsend was not going to stop for the stop sign; he therefore "tried to move over a little bit" and stepped on the accelerator in an attempt to avoid the collision. Townsend, who had been traveling between 10-15 miles per hour, slowed down at the intersection to approximately 5-8 miles per hour. The two trucks nonetheless collided. The left front of Townsend's truck hit the right rear wheel and quarter panel of Sirotiak's truck. After the impact both men got out of their vehicles to discuss the accident. Townsend was uninjured and Sirotiak felt all right at the time. Townsend conceded that the accident was his fault and they then drove back to Sirotiak's work place to inform Sirotiak's supervisor of Townsend's fault. Two days later Sirotiak went to the infirmary complaining of lower back pain. Shortly thereafter Sirotiak went to see an Anchorage doctor. He never returned to the North Slope. In Anchorage, Sirotiak saw Dr. J.J. Smith, who diagnosed Sirotiak's problem as low back strain and prescribed pain medication and bed rest. Sirotiak later returned to Minnesota where his care was assumed by back specialist Dr. Matthew Eckman. B. THE TRIAL. Sirotiak filed suit against Price, ARCO and Townsend in September 1984. Before the case went to trial Price and Townsend conceded negligence, but not the extent or severity of injury. A trial was held in Anchorage from September 22 through October 6, 1986. At trial Dr. Eckman testified that Sirot-iak's back appeared to be normal before the accident. Eckman stated that Sirot-iak's back showed significant arthritic changes caused by the September 1982 accident, that the process of deterioration would continue, and that he could no longer perform physical labor. Since the accident Sirotiak has earned his living supervising a small logging business and investing in a restaurant/bar. At Price's request, Sirotiak was examined by Dr. Horton on September 4, 1986. Sirotiak's injury was diagnosed as degenerative disk disease. Horton testified that there were pre-existing degenerative changes that were not significantly aggravated by the 1982 accident. Additional evidence was introduced at trial suggesting other events caused Sirot-iak's back problems. Robert Byman, a deputy sheriff from Minnesota, testified that Sirotiak had an altercation with police officers on December 30, 1983, in which Sirotiak was wrestled to the ground. Marvin Waller, Sirotiak's roomate on the North Slope, testified that Sirotiak may have complained to him of back pain prior to the accident. Each party introduced expert accident reconstruction evidence at trial. Sirotiak's expert, John Talbott, testified via a video deposition. Relying in part on Sirotiak's and Townsend's statements, Talbott posited a 90 degree collision between the front of Townsend's truck and rear axle of Sirot-iak's truck. Sirotiak stated that he was hit broadside in the back of the "box" of his pick-up. Townsend had stated that he pulled through the intersection and hit Si-rotiak in the right rear quarter panel. Townsend described the damage to his truck as "it bent just a piece of trim chrome around the headlights." Talbott theorized that the action of the Townsend truck hitting the right rear panel of Sirotiak's truck caused Sirotiak's truck to spin. That spinning motion carried Si-rotiak's upper body forward while his lower body rotated with the vehicle, resulting in his lower spine receiving a twisting jolt. In developing his theory, Talbott assumed as fact a lighter weight truck than was actually driven. In contrast, Price's expert, James Stirling, posited an angled collision at less than 90 degrees which caused only minor damage to both trucks. Stirling also relied on statements made by Sirotiak, Townsend, as well as Waller and several other Price employees. Consistent with Townsend's statements, Waller and the Price employees told Stirling there was no damage to the front of the Townsend truck except for the left front headlight area. Under Stirling's theory the fact that the sheet metal absorbed the force of the impact coupled with an angled collision resulted in a gentle rotation of the truck. In addition, Stirling correctly based his calculations on a heavier weight Ford 250 pickup, a factor that would also lessen Sirot-iak's rotation. Stirling described Sirotiak's movement in the truck as pushing him backward into his seat much like the forces at work in an airplane takeoff. Sirotiak learned of Price's theory of an angled collision two days before trial. At that point Sirotiak's expert was out of the country, having left behind a video deposition containing calculations based on the wrong truck weight and discussions of only the 90 degree collision theory. Sirotiak thus presented his case in chief theorizing a 90 degree collision but without introducing any evidence determinative of a 90 degree collision. Not until after the close of his case in chief did Sirotiak locate an eye witness who could describe damage to the Townsend truck determinative of a 90 degree collision. This witness, Alvin Yanity, was willing to testify that there was notable damage all across the front of the Townsend truck. Although Yanity's name did not appear on the witness list, Sirotiak attempted to call him as part of his rebuttal case. The trial court excluded Yanity's testimony. As additional rebuttal to the angled collision theory Sirotiak attempted to call three expert witnesses: Dr. Peter Fisher, Dr. Douglas Smith and Dr. Will Nelson. Only Fisher was on Sirotiak's witness list. Nelson was to defend Talbott's theory as to the 90 degree impact, as well as Tal-bott's calculation on the rotation of the truck. Nelson was willing to defend Tal-bott's theory even though Talbott had used the wrong truck weight. Nelson would also have defended Talbott's original theory taking into account Yanity's statement as to truck damage. The court initially agreed to allow Nelson to testify as a rebuttal witness because of Talbott's unavailability. On the Friday before Nelson was to testify, the court offered Price the choice of deposing Sirot-iak's three expert rebuttal witnesses in person or getting written statements from them. Price's counsel opted for written statements. He asked that the reports be available at 10 a.m. on Saturday, in order to afford him time to consult with another expert if necessary. Sirotiak's counsel responded that the reports could be available by noon, and the court compromised on 11 a.m. The following morning Sirotiak's counsel stopped by the offices of Price's counsel at approximately 9 a.m. to drop off the reports. At that time, the building was dark and the door was locked. Sirotiak's counsel called Price's counsel at 11:08 a.m. He informed Price's counsel that the reports were available immediately. Price's counsel indicated that he would send someone to pick them up. Monday morning Price moved to strike Nelson's testimony as well as the testimony of the two other experts. Price argued that Nelson's report was insufficient to give it information to cross-examine the witness because it was a mere summary. Price contended that the reports lacked the expert's theory and the basis for the theory. Price also argued that reports were late. Sirotiak defended the contents of the reports. He also explained that he tried to deliver the reports early Saturday morning. Sirotiak argued that the fact that he called Price's counsel at 11:08 to pick up the reports was not reason enough to exclude Nelson's testimony. The court excluded Nelson's testimony. The trial court agreed with Price that what was produced was an inadequate report. In addition, the court noted that the "report" was late. The jury found that Townsend's negligence was a legal cause of Sirotiak's injury but awarded only $15,720. Sirotiak had asked for over $1 million in lost income, $17,726 in medical expenses and $7,708 in vocational rehabilitation expenses. Sirot-iak moved for a new trial on the ground that he was denied an opportunity to present an effective rebuttal case. The motion was denied, and Sirotiak appeals. DISCUSSION A. THE TRIAL COURT DID NOT ERR IN DENYING CHALLENGES FOR CAUSE OF VARIOUS PROSPECTIVE JURORS. Sirotiak's first assignment of error is that the trial court "allow[ed] jurors to serve who were biased against the cause of action and the amount of relief sought." The trial court allowed voir dire questions on the tort reform debate. Several members of the jury panel expressed strong feelings about the need for tort reform and objected to high damage awards. The record indicates, however, that none of the six prospective jurors Sirotiak challenged for cause sat on the jury. Three of those challenged for cause were excused by the judge. The trial court denied challenges for cause against John Havard and Alfred Augestad. Sirotiak then excused those jurors by exercising two of his peremptory challenges. Sirotiak used his third peremptory challenge to excuse Jane Winters, who was not challenged for cause. The remaining challenged juror, Todd Fisher, was removed through the grant of "an extra peremptory or for cause." Thus, the narrow issue on appeal is whether the trial judge erroneously denied two challenges for cause and if so, whether Sirotiak was prejudiced by being forced to use two peremptory challenges against jurors that should have been removed for cause. The determination of a challenge for cause lies in the sound discretion of the trial judge. Alaska R.CÍV.P. 47(c). The appellate court will "interfere with the exercise of that discretion only in exceptional circumstances and to prevent a miscarriage of justice." Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964). We next determine whether the trial court erroneously denied challenges for cause against Havard and Augestad. Havard, an engineer, stated that he had preconceptions "towards the ability for someone to sue H.C. Price just because their employee happened to run a stop sign and hit somebody when there was no gross negligence or willful neglect involved." When asked how the fact that Price would have to pay damages would affect him, Havard responded: "If you are waiting for me to say that I think it would affect my judgment, make it impossible for me to be fair, you're not going to hear me say that. I think I could be fair, but I think it would predispose me, ." Although Havard indicated that Sirotiak would have to work harder to prove damages to Havard than to the average person, Havard stated "if the damages are proved to be just based on the facts then any number is fair." In response to defense counsel, Havard said he could be fair, set aside his predispositions and follow the judge's instructions. Augestad shared Havard's antagonism at the concept of suing the deep pocket. However, Augestad did not have negative feelings about injured workers collecting damages. He observed that Sirotiak did not look injured and stated: "I do think it's wrong basically to try for over a million dollars when from appearances, the person does not appear to be injured." Augestad stated he "wouldn't have a problem understanding what [the judge's] instructions would be and follow them. But right now, frankly, I would doubt those instructions . would end up being much in your favor." Augestad also felt that his own insurance rates were affected by high verdicts. Augestad stated he was opposed to high contingent fees and gave contradictory statements as to whether those views would affect his decision. Augestad concluded his answers to Sirotiak's questions by agreeing he would do his best to follow the court's instructions "but [he] would find it tough." Upon voir dire by defendant's counsel Augestad indicated he would evaluate the case differently if the outward appearance of the evidence were different. In other words he stated he would listen to the evidence and instructions and reach a fair conclusion. Challenges for cause may be taken on the following grounds, among others: That the person is biased for or against a party or attorney. That the person shows a state of mind which will prevent him from rendering a just verdict, or has formed a positive opinion on the facts of the case or as to what the outcome should be, and cannot disregard such opinion and try the issue impartially. That the person has opinions or conscientious scruples which would improperly influence his verdict. Alaska R.CÍV.P. 47(c)(2), (c)(3), (c)(4). Sirotiak argues that there was jury bias resulting from the insurance industry's tort reform publicity campaign. We agree that bias as to the size of the verdict can be prejudicial. See Murphy v. Lindahl, 24 Ill.App.2d 461, 165 N.E.2d 340, 344-45 (1960); Atlanta Joint Terminals v. Knight, 98 Ga.App. 482, 106 S.E.2d 417, 424 (1958). In general, "bias on the part of prospective jurors will never be presumed and the challenging party bears the burden of proof." City of Kotzebue v. Ipalook, 462 P.2d 75, 77 (Alaska 1969) (quoting Borman v. State, 1 Md.App. 276, 229 A.2d 440, 441-42 (1967)). Thus, we have said that when analyzing a juror's state of mind it is sufficient that the juror indicates that he or she could be fair and impartial, would allow a justifiable award, and would follow the instructions of the court in arriving at a verdict. Mitchell, 394 P.2d at 897. See also Beech Aircraft Corp. v. Harvey, 558 P.2d 879, 881 (Alaska 1976) (nine jurors had some familiarity with plaintiffs' decedents, but because acquaintance between the deceased and the jurors was casual and because each juror said he or she could serve without prejudice, we found no bias in denying extra peremptory challenges). Accord Quincy v. Joint School Dist., 102 Idaho 764, 640 P.2d 304 (1981). Sirotiak urges us to adopt a more stringent standard: that when the cold record reflects bias, the appellate court must be convinced that any subsequent assertion of impartiality is "unequivocal and absolute." United States v. Nell, 526 F.2d 1223, 1230 (5th Cir.1976); Auriemme v. State, 501 So.2d 41, 44 (Fla.App.1986); State v. Land, 478 S.W.2d 290 (Mo.1972); Williams v. State, 565 S.W.2d 63, 65 (Tex.Cr.App.1978). In the instant case Sirotiak argues the court was too ready to accept those jurors who, while admitting bias, also said they would be fair. We are not persuaded to adopt Sirotiak's suggestion. First, we conduct our review of the record looking only for abuse of discretion. To require the cold record to reflect "unequivocal and absolute" impartiality intrudes on the discretion granted trial courts because the judge is present and observing proceedings. Second, we doubt the truly honest juror could state unequivocally and absolutely that his or her biases will have no effect on the verdict. All that is required of a prospective juror is a good faith statement that he or she will be fair, impartial and follow instructions. Applying this standard to Havard and Augestad we conclude the trial court did not abuse its discretion in denying the challenges for cause. Although Havard stated he had a strong predisposition against a person suing a "deep pocket" he said he thought, albeit with difficulty, he could be fair. Sirotiak argues that Havard's statements evidence only pallid acquiescence that the juror could be impartial in spite of strongly held biases. However, we observe that some of Havard's assertions of fairness and ability to follow instructions were in response to Sirotiak's questions and not "pallid acquiescence" to Price's leading questions. With respect to prospective juror Auges-tad we realize that he initially responded to Sirotiak's questions by indicating that proof by a preponderance of the evidence would not satisfy him. However, he then stated he "wouldn't have a problem understanding what [the judge's] instructions would be and follow them." In response to Price's questioning Augestad firmly stated he could be fair and follow the judge's instructions. Because both jurors stated they would be fair, impartial and follow instructions we find no abuse of discretion and no error in the trial court's denial of the challenges for cause against Havard and Augestad. B. THE TRIAL COURT DID NOT ERR IN REFUSING TO GRANT A NEW TRIAL ON THE GROUND SIROT-IAK WAS DENIED THE OPPORTUNITY TO PRESENT AN EFFECTIVE REBUTTAL CASE. Sirotiak's second assignment of error is the trial court's refusal to allow Alvin Yanity and Dr. Will Nelson to testify on rebuttal. "[R]ebuttal testimony is any competent evidence which explains, is a direct reply to, or a contradiction of material evidence introduced by . a party in a civil action." Riffey v. Tonder, 36 Md.App. 633, 375 A.2d 1138, 1145 (1977); 6 J. Wigmore, Evidence § 1873 (Chadboum rev. ed. 1976) (usual rule excludes all evidence which has not been made necessary by the opponent's case in reply). Cf. Van Horn Lodge, Inc. v. Ahearn, 596 P.2d 1159 (Alaska 1979). The focus of rebuttal is to respond to new points or material first introduced by the opposing party. Chrisler v. Holiday Valley, Inc., 580 S.W.2d 309, 314 (Mo.App.1979); Souza v. United Electric Railways Co., 49 R.I. 430, 143 A. 780, 782 (1928). Rebuttal should not merely contradict or corroborate evidence already presented, instead it should be evidence in denial of some affirmative fact which the answering party endeavors to prove. Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889 (1982). The trial court is vested with wide discretion in controlling the order of proof. American Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1339 (Alaska 1982). Whether evidence is proper rebuttal evidence lies within the trial court's sound discretion. See Alaska Airlines, Inc. v. Sweat, 568 P.2d 916, 932 (Alaska 1977). "The standard for determining whether a rebuttal witness should be allowed to testify when the witness's name was not timely identified . [is] 'dependent on whether the testimony sought to be rebutted could reasonably have been anticipated prior to trial.'" City of Kotzebue v. McLean, 702 P.2d 1309, 1315 (Alaska 1985) (quoting Sweat, 568 P.2d at 932). We have re peatedly upheld the trial court's discretion both in excluding and admitting evidence where there has been non-compliance with discovery or the pretrial order. In general, evidence which is necessary to prove a prima facie case should be presented in the plaintiffs case in chief. 6 J. Wigmore, § 1873, at 678. Although the plaintiff is not required to anticipate defenses as part of its case in chief, see Houser v. Coursey, 310 Ky. 625, 221 S.W.2d 432, 433-34 (1949), the plaintiff may not ignore known defense theories or close his or her eyes to evidence that directly counters plaintiff's prima facie case. See Pieniewski v. Benbenek, 56 A.D.2d 710, 392 N.Y.S.2d 732 (1977) (although evidence would have rebutted how accident occurred evidence should be excluded because it corroborated plaintiff's evidence and should have been in case in chief). In the instant case Sirotiak tried to introduce rebuttal evidence that properly belonged in his case in chief. Sirotiak's theory of the case required proof of a 90 degree collision. However, prior to trial Sirotiak did not prepare any evidence determinative of a 90 degree collision. Not until after Sirotiak learned Price intended to argue a less than 90 degree collision did Sirotiak search for evidence determinative of a 90 degree collision. Consequently, Sirotiak did not locate a witness, Yanity, who would testify to truck damage determinative of a 90 degree collision until after the close of his case in chief. Yanity was not on Sirotiak's witness list. Although Yanity had been interviewed by Sirotiak's investigator some months earlier he was one of several witnesses whose names Sirotiak refused to disclose to Price during discovery. The trial court excluded Yanity. The court reasoned that Yanity was not on the witness list. The court also found that Sirotiak was not surprised by Price's defense theory. The court reasoned that damage to Townsend's truck "was an issue the day the case started." Townsend had consistently stated that the only damage to the truck was to the chrome around the left front headlight. Sirotiak testified that he may have attempted to swerve to the left to avoid the accident which would have negated a full frontal impact by the Townsend vehicle. Thus, the court implicitly concluded "the testimony sought to be rebutted could reasonably have been anticipated prior to trial." McLean, 702 P.2d at 1315. Accordingly, we hold that the trial court did not abuse its discretion in excluding Yanity's testimony. The trial court was initially willing to allow Nelson to testify in rebuttal to Price's expert witness. The court recognized that Sirotiak's principal expert, Tal-bott, was unavailable to defend his theory. However, as a sanction for preparing an inadequate report and delay in transmitting that report the trial court excluded Nelson's testimony. The trial court's reasoning in excluding Nelson is unpersuasive. First, the trial court reasoned that the "report" was a mere' summary based in part on material the court had already ruled inadmissible. However, the trial court had not ordered a specific detailed report. Moreover, Price chose to receive reports rather than to depose Sirotiak's three expert rebuttal witnesses. Further, Sirotiak offered to let Nelson testify without reference to the inadmissible material. Second, the court excluded Nelson because of the short delay in transmitting the statements from Sirotiak's counsel to Price's counsel. As Sirotiak argues, the court did not specify whether Sirotiak was to deliver the reports at 11 a.m. or merely have them available at that time. On balance we conclude that excluding a witness as a sanction where there has been a good faith attempt to comply with vague orders is an abuse of discretion. Nonetheless, we may affirm a judgment on any ground supported by the record even if it was not relied on by the trial court. Native Village of Eyak v. G.C. Contractors, 658 P.2d 756, 758 (Alaska 1983). Our review of the record leads us to conclude that the exclusion of Nelson was justified because Sirotiak, as previously determined, was not surprised by the defense theory. Therefore, the testimony sought to be rebutted could reasonably have been anticipated prior to the trial. CONCLUSION For the reasons stated above, the decision of the trial court is AFFIRMED. . At the time of the accident Sirotiak was em-ployeed by Alaska International Constructors (AIC). At that time AIC apparently contracted to perform services for and leased vehicles from ARCO on the North Slope. . The jurors dismissed for cause included: (1) Rana Bennett, who was suspicious of worker's compensation claims and had strong feelings about running stop signs which she felt she could not put aside; (2) Jeannette Haas, who felt very strongly that monetary awards should not be available for anything other than medical and repair bills proven to exist; (3) Eileen Lally, a former employee of Price, who informed the entire panel that a company as fair as Price would have settled this claim if it were any good. . The challenge for cause was initially denied against Fisher. Fisher expressed a "fundamental problem" with an award the size of one million dollars. He conceded that it would be hard for him to put his "preconceived notions" aside yet he said that he could be fair despite those feelings. Sirotiak later renewed the challenge. The court then granted Sirotiak an additional challenge stating: 'Til grant you an extra peremptory or for cause[,] however you wish— I'll grant the challenge." Sirotiak then excused Fisher. . Sirotiak also argues that even though he did not challenge another juror, Greg Theobald, for cause, the trial court should have removed Theobald sua sponte. See Jordan, Jury Selection, § 501, at 65-66 (1980) (responsibility for jury impartiality lies with both the trial attorneys and the trial court). See also 1983 A.B.A. Standards Relating to Juror Use and Management, Commentary to Standard 8 at 81. However, unless there is a clear abuse of discretion, we are of the view that if no challenge for cause is made then the challenge is waived. See Grimes v. Haslett, 641 P.2d 813, 816 (Alaska 1983). .A challenging party must demonstrate that it has used all of its peremptory challenges before prejudice results from the trial court's refusal to excuse a juror for cause. See McGee v. State, 614 P.2d 800, 807 (Alaska 1980) cert. denied 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); City of Kotzebue v. Ipalook, 462 P.2d 75, 77 (Alaska 1969). Thus the forced use of a peremptory challenge is not in itself a sufficient ground for a new trial. See Abernathy v. Eline Oil Field Services, Inc., 200 Mont. 205, 650 P.2d 772, 778 (1982). To establish prejudicial error a challenging party must show that the erroneous denial of a challenge for cause forces parties to expend peremptory challenges to their prejudice. See Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230, 232 (1977); Auriemme v. State, 501 So.2d 41, 43 (Fla.App.1986) review denied 506 So.2d 1043 (Fla.1987); Crawford v. Manning, 542 P.2d 1091, 1093 (Utah 1975). Here Sirotiak exhausted his peremptory challenges and would therefore have been prejudiced if the challenges for cause were erroneously denied. . The trial court permitted voir dire on jurors' perceived connection between a high award in this case and their own insurance rates. Sirotiak analogizes this perceived connection to Civil Rule 47(c)(12)'s provision for excusing jurors who are financially interested in the litigation. See Andry v. Cumis Ins. Society, Inc., 387 So.2d 1374, 1377 (La.App.1980); Alaska R.CÍV.P. 47(c)(12). We view the connection between insurance premiums and high verdicts as no more than general bias as to the size of the verdicts. . Compare State v. Doyle, 735 P.2d 733 (Alaska 1987) (upheld the court's grant of a continuance instead of excluding evidence because no proof of a willful refusal to comply with discovery); Advanced, Inc. v. Wilks, 711 P.2d 524, 528 (Alaska 1985) (discovery sanctions within discretion of trial court) and Grimes v. Haslett, 641 P.2d 813, 822-23 (Alaska 1982) (upheld continuance based on belief that preclusion of testimony is too harsh a sanction); with Yukon Equip., Inc. v. Gordon, 660 P.2d 428 (Alaska 1983) (as soon as defendant learned of plaintiffs expert's testimony, defendant hired a new expert, not on the witness list, to rebut plaintiffs expert, court properly excluded the defendant's new expert to prevent defendant getting an unfair advantage) and Drickersen v. Drickersen, 604 P.2d 1082 (Alaska 1979) (excluded expert opinion testimony that had not been disclosed to opposing counsel until trial).

10551543

Theresa SULLIVAN, Appellant, v. STATE of Alaska, Appellee

Sullivan v. State

1973-05-04

No. 1530

832

836

509 P.2d 832

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

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

Theresa SULLIVAN, Appellant, v. STATE of Alaska, Appellee.

Theresa SULLIVAN, Appellant, v. STATE of Alaska, Appellee. No. 1530. Supreme Court of Alaska. May 4, 1973. Ronald G. Birch, of Birch & Jermain, Anchorage, for appellant. Robert L. Eastaugh, Asst. Dist. Atty., Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, John Havelock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

2393

14306

CONNOR, Justice. Theresa Sullivan appeals from a judgment of guilty of larceny from a person entered June 4, 1971, by the superior court, pursuant to a jury verdict. Her appeal raises questions concerning the adequacy of her legal representation at trial. During the early morning hours of February 10, 1971, one Duane Parks had his wallet taken from his rear pocket by a woman in the Nevada Tavern and Cafe, 1313 Gambell Street, Anchorage. This woman he later identified as appellant Sullivan. A struggle to recapture the wallet ensued, during which Sullivan appeared to pass it to another woman, whom Parks later identified as Renae Leona Lee. On March 23, 1971, appellant and Lee were indicted for larceny from the person in violation of AS 11.15.250. Following their arrest, Sullivan and Lee were arraigned together on March 30, 1971. Attorney Wendell Kay of the firm Kay, Miller, Lib bey, Kelly, Christie & Fuld appeared on both their behalf. On April 7, 1971, the co-defendants pleaded not guilty. Attorney William Fuld, also of the above law firm, appeared as their counsel on this occasion and represented them both throughout the proceedings, until the conclusion of the trial. Mr. Fuld was privately retained by Sullivan and Lee. He was not appointed by the court. On April 9, notice was sent to Mr. Fuld that trial had been set for May 10, 1971. On April 12, Fuld moved for a bill of particulars, which was answered on May 3. On April 23, he moved for a continuance. Fuld being unable to attend the April 28 hearing on this motion, Attorney Robert Libbey, another member of the firm, appeared for the defendants. In the course of that hearing, the district attorney opposed a continuance on the grounds that the victim, Parks, was a soldier due to rotate his assignment, and thus be removed from the jurisdiction, within a very short period. In fact, the district attorney was mistaken. Parks was not in the armed forces, was not due to rotate, and had never made any such representations to the district attorney's office. The court denied the motion, but without making reference to the district attorney's opposition. Instead, the court cited Mr. Fuld's sole request on April 7 for merely five days in which to move for a bill of particulars, observing that Fuld had had a "fair chance to make his motions" and that the proposed bill of particulars covered essentially evidentiary matters. On May 10, immediately before trial was scheduled to commence, Mr. Fuld renewed his motion for continuance, arguing that his schedule had been so pressing that he had not even had an opportunity to consult with his clients. Again the motion was denied, but the court accommodated Mr. Fuld, at the suggestion of the prosecutor, by limiting the day's proceedings to selecting the jury. On May 11, at 8:15 a. m., trial commenced. Mr. Fuld made an opening statement without futher request for continuance. In the course of the trial, the defense took the position that Lee was not at the scene of the larceny on the night in question and that while Sullivan was in the Nevada Tavern and Cafe at the time the larceny occurred, she took no part in it and had been mistakenly identified by Parks. Both defendants took the stand. Sullivan's testimony tended both to place her at the scene of the crime (although not as a participant in it) and to confirm Lee's alibi. On May 12, after the close of evidence, Mr. Fuld moved for a mistrial as to one or the other defendant on the grounds that a "definite potential conflict" existed between them making it impossible for him to argue effectively for both. The court denied the motion. The jurors were instructed to consider each defendant separately. They returned a verdict of not guilty for Lee and a verdict of guilty for Sullivan. I Appellant's first contention on appeal is that the trial court abused its discretion in failing to grant a continuance. She argues that the prosecutor's misrepresentation that Parks was soon to leave the jurisdiction was insufficient reason for denying continuance, and that as a result of the denial Mr. Fuld was given inadequate time to prepare for her defense. We disagree. Mr. Fuld was aware of the May 10 trial date from April 21, 1971. He knew on April 28, 1971, that his motion for continuance had been denied. Thus at the very least he had thirteen days in which to prepare the defense. The case was relatively simple. Only three witnesses were called by the prosecution. Aside from the co-defendants, o-nly one witness was called by the defense. Alaska subscribes to the general rule that a trial court's refusal to grant a continuance will not be disturbed on appeal unless an abuse of discretion is demonstrated. Appellant cites us to Doe v. State, 487 P.2d 47 (Alaska 1971) and Klockenbrink v. State, 472 P.2d 958 (Alaska 1970), in which this court reversed the trial court's denials of motions for continuance. In both of these cases the defendants had a much shorter time to prepare than in the present case. In Klockenbrink, counsel had a maximum of five days to prepare, and in Doe counsel had merely four days, including a weekend, to prepare. We are of the opinion that thirteen days was quite sufficient a period for Mr. Fuld to prepare the defense, especially considering the relative simplicity of the case. Because we are satisfied with the adequacy of the thirteen day period, we do not think that the court's reliance on the district attorney's erroneous statement of Parks' military status requires a reversal. In Klockenbrink we were guided by People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736 (1962): "The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court . . Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights." 182 N.E.2d at 738. [Citations omitted, emphasis added.] In Doe we said: "Although in the case at bar, unlike the case of Klockenbrink v. State, supra, no particular instance of prejudice was shown to have resulted from the shortness of time between charge and trial, we believe the added circumstance in ' this case that appellant's counsel had the other case to prepare, distinguishes this case sufficiently from Klockenbrink that we may presume that appellant's case was prejudiced." 487 P.2d at 57. [Emphasis added.] Therefore, before we can reverse, we must be able to say that appellant has been prejudiced by the denial. Appellant makes no claim that the misrepresentation was intentional. Conceding that the court's refusal to grant a continuance was based on a mistake of fact and that it inconvenienced Mr. Fuld, we are nevertheless unable to conclude that appellant's case was prejudiced thereby. The inescapable fact is that counsel was given an adequate time in which to prepare. As we said in Mead v. State, 445 P.2d 229 (Alaska 1968), cert. denied, 396 U.S. 855, 90 S.Ct. 117 (1969): "The fact that counsel did not use the time available to his and appellant's advantage affords no basis for finding abuse of discretion in the trial court's denial of the continuance. If it were otherwise, a trial court would be obliged to continue every case at the defendant's request where defendant's counsel alleged that he was not prepared to go to trial, regardless of how much prior notice he may have had of the trial setting. This could lead to interminable delays in disposing of cases. The ends of justice would not be well served by such an arrangement." 445 P.2d at 232. II Appellant's second contention on appeal is that the court erred in denying Mr. Fuld's motion for mistrial after the close of evidence. She argues that Article I, Section 11, of the Alaska Constitution guarantees an accused the right " . . .to have the assistance of counsel for [her] defense" and invokes Thessen v. State, 454 P.2d 341, 352 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 588, 24 L.Ed.2d 525 (1970); Mead v. State, 445 P.2d 229, 233 (Alaska 1968), cert. denied, 396 U.S. 855, 90 S.Ct. 117 (1969); Anderson v. State, 438 P.2d 228, 230 (Alaska 1968) for the gloss that this guarantee "means that such assistance must be effective." Effective assistance was denied her, she claims, because under the circumstances of this case, it was impossible for Mr. Fuld adequately to represent both appellant and her co-defendant. In Anderson v. State, 438 P.2d 228, 230 (Alaska 1968) we read "effective assistance" to describe a procedural requirement as distinguished from a standard of skill. Unless counsel's conduct is "so incompetent as to deprive his client of a trial in any real sense — render the trial a mock ery and a farce . . . " this court will not reverse. Appellant concedes that her trial was not a mockery or farce within the guidelines of Anderson. She attests that Mr. Fuld did a competent and workmanlike job for both of his clients. We are satisfied from reading the record that Mr. Fuld conducted a vigorous defense and that any claimed errors in judgment on his part do not support the inference that he was ineffective counsel. Furthermore, with regard to any conflict of interest, he voiced no objection to the difficulty of arguing effectively for both clients until all the evidence had been taken. Yet the conflict between his clients, if it existed at all, was present from the beginning of the case. In effect appellant argues for a rule that would enable an attorney representing co-defendants in a single prosecution to present his proofs and then move for a mistrial if he were dissatisfied with the case he had presented. We are unwilling to adopt such a rule. Our research has uncovered a line of cases, having its genesis in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942), which holds that courts may not foist upon a defendant counsel who is also responsible for the defense of a co-defendant. Glasser was charged with accepting bribes while he was a United States Attorney in charge of prosecuting violations of the Volstead Act in Illinois. The trial court appointed counsel obtained by Glasser to undertake the additional burden of defending a co-defendant who was without counsel. Glasser objected. In reversing Glasser's conviction the United States Supreme Court said: ". . . [T]he Sixth Amendment contemplates that such assistance [of counsel] be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." 315 U.S. at 70, 62 S.Ct. at 465. The instant case is distinguishable from the Glasser situation. Here counsel was privately retained by appellant and her co-defendant. Thus neither Sullivan nor Lee was forced to share her counsel with a co-defendant. If either had wished to secure the services of individual and exclusive counsel, she could have retained another attorney or, upon proper showing of indi-gency to the court, could have had separate counsel appointed for her. We do not announce a rule arbitrarily foreclosing from relief all co-defendants who retain the services of a single counsel. However, before reversing on the grounds of deprivation of effective assistance of counsel, we must be satisfied that an appellant has been prejudiced by an actual conflict of interest between himself and his co-defendant. In the case before us, Mr. Fuld could articulate no more than a feeling of "definite potential conflict" between his clients. This, without more, does not convince us that reversal is warranted. Affirmed. FITZGERALD, J., not participating. . This error was not uncovered until trial on May 11, 1971. . On this occasion the court did specifically refer to the district attorney's mistaken information that Parks was scheduled to rotate. . Mr. Fuld declined the court's offer on the second day of trial of additional time to subpoena and call any other witnesses. . Mead v. State, 445 P.2d 229, 230-231 (Alaska 1968), cert. denied, 396 U.S. 855, 90 S.Ct. 117, 24 L.Ed.2d 104 (1969). . We note that numerous cases have ruled that periods of eleven to thirteen days were sufficient to prepare for trial. See, e. g., Kroll v. United States, 433 F.2d 1282 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1616, 29 L.Ed.2d 112 (1971) (12 days) (securities fraud); United States v. Eagleston, 417 F.2d 11 (10th Cir.1969) (13 days) (transport of stolen goods interstate); Duncan v. State, 46 Ala.App. 732, 248 So.2d 771 (Ala.Crim.App.1971) (11 days) (robbery). Appellant cites only one case holding that a period longer than thirteen days was insufficient time for trial preparation, People v. Kenzik, 9 Ill.2d 204, 137 N.E. 2d 270 (1956). That case is distinguishable. The defendant there had been charged with first-degree murder. The purpose of the requested continuance was to find witnesses whose names and work addresses were known, but whose home addresses were not known. In addition, some of the witnesses lived out-of-state. In the case at bar, by contrast, the charge and possible penalty were far less serious, there were relatively few witnesses, and all resided within the city of Anchorage. . See note 5, supra. . We do not imply by this citation that Mr. Fuld failed to use the available time to his and appellant's advantage. . See also Condon v. State, 498 P.2d 276, 285 (Alaska 1972); Dimmick v. State, 473 P.2d 616, 618 (Alaska 1970); White v. State, 457 P.2d 650, 653 (Alaska 1969). . See People v. Douglas, 61 Cal.2d 430, 392 P.2d 964 (1964), vacated and remanded, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), reh. denied, 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200 (1963). . See State v. Miguel, 485 P.2d 841, 843 (Ariz.App.1971).

10398072

James G. CONNOLLY, Appellant, v. STATE of Alaska, Appellee

Connolly v. State

1988-07-29

No. A-2228

633

639

758 P.2d 633

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

James G. CONNOLLY, Appellant, v. STATE of Alaska, Appellee.

James G. CONNOLLY, Appellant, v. STATE of Alaska, Appellee. No. A-2228. Court of Appeals of Alaska. July 29, 1988. Richard L. McVeigh, McVeigh & Mela-ney, Anchorage, for appellant. Leonard M. Linton, Jr., Chief Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3294

20594

OPINION SINGLETON, Judge. James G. Connolly drove his vehicle while he was intoxicated and struck and killed a pedestrian. As a result, he was convicted by a jury of manslaughter, a class A felony, AS 11.41.120(a)(1), and "hit and run" driving, AS 28.35.050(a); AS 28.-35.060(a). Connolly appeals, raising two issues. Connolly argues that the trial court erred in sentencing him to seven and one-hálf years' imprisonment for a class A felony offense in the absence of any aggravating factors. Connolly is a first felony offender. The applicable presumptive term is five years. AS 12.55.125(c)(1). The trial court lacks authority to impose additional time, even if the additional time is suspended. See McManners v. State, 650 P.2d 414, 416 (Alaska App.1982). The state concedes that the sentence imposed in this case is illegal, but argues that a legal sentence, carrying out the trial judge's intent, could be fashioned by imposing five years with one year suspended for the manslaughter conviction and an additional two and one-half years suspended for leaving the scene of the accident without rendering aid. Connolly's second argument is that his sentence, if restructured, would be excessive. FACTS Connolly was involved in an accident on December 19, 1986, at approximately 6:22 p.m. He had been drinking, and it is estimated that he had a .20 blood alcohol level at the time of the incident. He was driving east on DeArmoun Road when a bus, proceeding in the opposite direction, stopped to let off passengers. Connolly contends that the bus' headlights temporarily blinded him so that he did not see the victim who emerged from the bus and crossed DeAr-moun Road in his path. Connolly struck the victim, knocking her into a ditch. Connolly, apparently recognizing that he had hit something, stopped his car and got out to investigate. The victim's grandson, in the meantime, had come up to meet her and observed Connolly standing in front of his pickup truck with the right front headlight broken out and damage inflicted to the right front portion of the pickup. Connolly appeared to be picking up pieces of the pickup's grill and fragments of the headlight. The grandson saw a person lying in the ditch. He mentioned this to Connolly, at which point Connolly re-en tered his vehicle and left the scene. The grandson contacted the police, who responded shortly thereafter. The victim was examined by investigating troopers and a doctor, who was a passerby; the victim was pronounced dead at the scene. In the meantime, Connolly had driven approximately two blocks. He stopped at a residence and was able to call the police. At their request, he waited at the residence until they picked him up. Connolly was convicted of manslaughter and "hit and run" driving. At the time set for sentencing, the state gave the requisite notice that presumptive sentencing applied. It gave no notice of aggravating factors. The parties stipulated to a mitigating factor — that Connolly's conduct constituting the offense was among the least serious within the definition of the offense. AS 12.55.155(d)(9). The court concluded that the significant offense was manslaughter and that leaving the scene, although a separate distinct offense, did not contribute to the damage suffered because the victim was already dead. In any event, it appears that aid was immediately summoned. The court expressed concern that Connolly had a substantial alcohol problem that required treatment and that, consequently, a substantial period of suspended time was necessary to ensure his rehabilitation. The court also indicated that some deduction from the five-year presumptive prison sentence should be made to account for the mitigating factor. The court imposed a sentence of seven and one-half years for manslaughter, suspending three and one-half years so that Connolly would actually serve one year less than the presumptive five-year term. The court indicated that Connolly would be on probation for five years. For failure to stop, the court imposed the maximum ninety-day sentence, but made it concurrent. For failure to render aid and give information, the court reiterated that there were no adverse or negative consequences and therefore imposed a one-year concurrent sentence. Defense counsel and the prosecutor conferred briefly off the record, and then notified the court that the proposed sentence for manslaughter was illegal because, when suspended time was considered, the total sentence exceeded the presumptive term and no aggravating factors had been found. The court considered the possibility of reaching its target sentence by imposing some consecutive suspended time for the failure to render aid. Connolly did not object to this, pointing out that his primary concern was the four years to serve and not suspended time. Defense counsel was not, however, willing to waive any double jeopardy protection that might accrue to Connolly by virtue of the court previously having articulated a different sentence. Concerned about the double jeopardy implications of refashioning the sentence, the trial court left the sentence intact, and Connolly appeals. DISCUSSION Connolly first argues that his sentence, as imposed, is illegal. We agree. For purposes of deciding this case, we assume that the sentence imposed was illegal because suspended time was imposed in excess of the five-year applicable presumptive term. We are, nevertheless, satisfied that the trial court could have adjusted the verbal sentence to carry out its intent, so long as it did so before concluding the sentencing hearing and adjourning. Sonnier v. State, 483 P.2d 1003 (Alaska 1971), is not to the contrary. In Sonnier, the supreme court held that once a sentence is meaningfully imposed, it cannot be varied in a manner adverse to the defendant without violating the defendant's double jeopardy rights. We are satisfied that the trial court had not "meaningfully imposed" any sentence at the time the parties' concerns about McManners were first voiced. In our view, it is reasonable to allow the trial court to impose a sentence and immediately modify it in response to objections or requests for clarification from the parties before concluding that it has "meaningfully imposed" an appropriate sentence. So long as the trial court does not conclude the sentencing hearing, we believe reconsideration of a sentence may be had without violating the principal articulated in Sonnier. In this case, the trial court did not modify the sentence. Consequently, it has now been "meaningfully imposed." The manslaughter sentence, as currently structured, violates McManners and must be modified. The parties voiced their concerns about the sentence during the sentencing hearing. Connolly was therefore on notice of the possible illegality of the sentence in the form imposed. The sentencing court made clear on the record its intent to impose a total sentence of seven and one-half years with three and one-half years suspended no matter how it was structured. Under these circumstances, we do not believe that it would violate Connolly's reliance interest to restructure the sentence to limit the manslaughter sentence to five years and one year suspended and impose, in addition, a consecutive sentence of two and one-half years for leaving the scene, in order to bring the sentence into conformity with McManners. State v. Price, 715 P.2d 1183, 1186-87 (Alaska App.1986). Connolly next argues that his sentence, if restructured, would be excessive. He points out that he had a favorable pre-sentence report, that the state stipulated that his conduct was among the least serious contemplated within the definition of the offense, AS 12.55.155(d)(9), and that he was considered a good candidate for rehabilitation by both the Department of Corrections and by Dr. Aaron Wolfe of the Langdon Clinic, who conducted an independent psychiatric examination. Connolly is correct that he has an exemplary record. He served with distinction in the military, was honorably discharged, and has been employed during the bulk of his life. He has no criminal record and, in fact, had no traffic violations prior to the instant offense. It appears that Connolly was laid off from a high-paying job approximately four months before the incident in question and was unable to obtain new employment. His employment difficulties contributed to marital difficulties which resulted in a divorce that became final on the day this incident occurred. A combination of inability to find work and marital problems led Connolly to drink excessively and accounted, at least in part, for his being intoxicated at the time of the incident in question. The state and Connolly stipulated that his conduct was among the least serious contemplated within the definition of the offense. AS 12.55.155(d)(9). In context, this would appear to mean that Connolly's conduct occupied the borderline between manslaughter and negligent homicide. See, e.g., Braaten v. State, 705 P.2d 1311, 1325 (Alaska App.1985) (Singleton, J., concurring). Presumptive sentencing is mandatory and is binding on the trial court. See Kelly v. State, 663 P.2d 967, 973-75 (Alaska App.1983). Parties may not stipu late to ignore past convictions in order to avoid presumptive sentencing. Hartley v. State, 653 P.2d 1052, 1055-56 (Alaska App.1982) (parties may not avoid presumptive sentencing by expressly or implicitly ignoring applicable aggravating or mitigating factors). Consequently, the trial court cannot merely accept a stipulation to an aggravating or mitigating factor, but must independently review the record to ensure that there is a factual basis for the proposed aggravator or mitigator. We stress the necessity of full disclosure to the sentencing court regarding pertinent facts. When there is a bona fide dispute between the parties regarding the factual basis for an aggravating or mitigating factor, the court may permit the parties to compromise the dispute regarding that factor and stipulate to its existence or nonexistence. Kelly and Hartley were not intended to prevent reasonable compromises regarding the facts upon which the presumptive sentencing guidelines depend. Our cases do prohibit the parties from disregarding clearly applicable past convictions or stipulating away aggravating and mitigating factors about which there is no reasonable basis for a dispute. The trial court may and probably should, after appropriate notice, sua sponte consider such factors and prior convictions when they are established in the record. Kelly, 663 P.2d at 974-75; Hartley, 653 P.2d at 1055-56. When, however, the facts are in dispute and reasonable people could differ on the question whether the evidence establishes clearly and convincingly the existence of a factor, the court may accept a stipulation regarding it. In this case, the record suggests that Connolly was driving with a blood alcohol level approximately twice the level prohibited by statute. On the other hand, construing the record most favorably to Connolly, his vision of the victim may have been obscured by the bus' headlights so that Connolly's intoxication only minimally contributed to the accident. It does not appear that the accident occurred on heavily travelled streets during a rush hour or in an area in which pedestrians could be expected to exist in large numbers. Under the circumstances, the trial court did not clearly err in accepting the parties' stipulation and finding that the record would support the conclusion that Connolly's conduct was among the least serious contemplated within the definition of the offense of manslaughter. Cf. Marks v. State, 496 P.2d 66 (Alaska 1972) (appellate court may not accept state's concession of error without independently evaluating the record to determine whether error exists). The mere fact that Connolly has established that his conduct was among the least serious within the definition of the offense, however, is not per se sufficient to justify a maximum decrease in the presumptive term. McReynolds v. State, 739 P.2d 175, 182 n. 5 (Alaska App.1987). The trial court must evaluate the significance of the mitigating factor based on the specific facts of each case and in light of the sentencing criteria established in State v. Chaney, 477 P.2d 441 (Alaska 1970). See Linn v. State, 658 P.2d 150 (Alaska App.1983). In other cases involving least serious conduct, we have approved relatively minor adjustments to the applicable presumptive term when such adjustments have been justified by the totality of the circumstances. See Nell v. State, 642 P.2d 1361, 1372 (Alaska App.1982); see also State v. Richards, 720 P.2d 47, 51 (Alaska App.1986) (Singleton, J., concurring). Our independent evaluation of the record in this case leads us to conclude that the trial court did not err in only reducing the presumptive term by one year of actual incarceration. We recognize that we must consider suspended time as well as actual incarceration. We assume that if the trial court imposes a restructured sentence on remand, at least two and one-half of the suspended years must be justified by Connolly's leaving the scene. In evaluating this part of the sentence, we note that the trial court did not consider Connolly's actions after the acci dent to have contributed to his victim's death. It appears that help was summoned almost immediately and that a passing doctor examined the victim and pronounced her dead. Connolly, himself, contacted the authorities within twenty minutes of the accident and only proceeded two blocks from the scene of the accident. On remand, the trial court may conclude that these factors militate against any consecutive time for leaving the scene, even if it is suspended. Nevertheless, the trial court found that Connolly had been drinking heavily on the day of the incident and, in addition, that he had been drinking heavily during the preceding days. Under the circumstances, the trial court would not be clearly mistaken in imposing an additional period of suspended time to ensure that Connolly refrains from excessive drinking and driving after he completes his period of incarceration. See, e.g., Gibbs v. State, 676 P.2d 606, 608 (Alaska App.1984) (suspended sentence may be imposed to give drunk driver substantial incentive to refrain from combining alcohol and driving after release from prison). We stress that a trial judge simultaneously sentencing for multiple offenses may impose a total sentence that is reasonable, taking into account all of the circumstances, even though one of the components of the total sentence, viewed in isolation, might be clearly mistaken if only that offense were considered. Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971). The sentence of the superior court is vacated and this case is REMANDED for resentencing in conformity with McManners v. State, 650 P.2d 414, 416 (Alaska App.1982). . Alaska Statute 11.41.120(a)(1) provides: Manslaughter, (a) A person commits the crime of manslaughter if the person, (1) intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree. . Alaska Statute 28.35.050 requires an operator of a vehicle involved in an accident resulting in the death of a person to stop and remain at the scene of the accident and comply with the provisions of AS 28.35.060. Alaska Statute 28.35.060 provides: Duty of operator to give information and render assistance, (a) The operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle which is driven or attended by a person shall give the operator's name, address, and vehicle license number to the person struck or injured, or the operator or occupant, or the person attending, and the vehicle collided with and shall render to any person injured reasonable assistance, including making of arrangements for attendance upon the person by a physician and transportation, in a manner which will not cause further injury, to a hospital for medical treatment if it is apparent that treatment is desirable. Under no circumstances is the giving of assistance or other compliance with the provisions of this paragraph evidence of the liability of an operator for the accident. (b) Except as provided in (c) of this section, a person who fails to comply with any of the requirements of this section is, upon conviction, punishable by imprisonment for not more than one year, or by a fine of not more than $500, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement. (c) A person who fails to comply with the requirement of this section regarding assisting an injured person is, upon conviction, punishable by imprisonment for not more than 10 years, or by a fine of not more than $10,000, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement. The supreme court has held that though they are separate offenses, AS 28.35.050(a) and AS 28.35.060(a) constitute an interlocking statutory scheme prescribing conduct commonly known as "hit and run" driving. The duty to stop and remain at the scene of the accident is set forth in AS 28.35.050(a). The declared and obvious purpose of the stopping requirement is to ensure compliance with the mandates of AS 28.35.060(a). The two duties enjoined upon the motorist by this latter section are to identify himself to the injured person and to render to that person all "reasonable assistance" under the circumstances. Drahosh v. State, 442 P.2d 44, 47-48 (Alaska 1968). Violations of AS 28.35.060(a) are punished as provided in subsections (b) and (c) of that statute. When, as here, injury or death results from failure to render aid, the offense is the conceptual equivalent of a class B felony with a ten year maximum penalty. AS 28.35.-060(c). In contrast, violations of AS 28.35.-050(a) are punishable as the equivalent of a class B misdemeanor. See AS 28.40.050(a), (b) (renumbered from former AS 28.35.230). See also Drahosh, 442 P.2d at 47 n. 10. . We recognize that there is an argument that McManners could be distinguished. In McManners, the defendant was sentenced for a single offense. Under those circumstances, we held that the applicable presumptive term could not be varied in the absence of aggravating or mitigating factors. See McManners, 650 P.2d at 416. In contrast, Connolly was sentenced for three offenses, albeit arising out of the same accident. The supreme court has held that when a defendant is simultaneously sentenced for multiple offenses, a single sentence, which might be inappropriate viewed in isolation, might, nevertheless, be appropriate when viewed as part of a total sentencing package. See Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971). In State v. Andrews, 707 P.2d 900, 910 n. 10 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986), we held that when a person is simultaneously sentenced for two or more crimes, each of which is subject to a presumptive sentence, that person must receive a total sentence at least equal to the most severe presumptive sentence when adjusted to reflect aggravating or mitigating factors, but need not receive consecutive presumptive sentences. Thus, two sentences, viewed in isolation, which would violate presumptive sentencing may, nevertheless, if imposed consecu tively, add up to the appropriate presumptive sentence and satisfy the law. Reading Andrews and Waters together, it is possible that we could construe Connollys multiple convictions and the trial court's power to impose consecutive sentences as the conceptual equivalent of a finding of aggravating factors so that the sentence imposed in this case would not be illegal. The parties have not discussed this argument, and we reserve judgment at this time. . We see no problem with the court's accepting the stipulation that Connolly's "hit and run" was among the least serious within the definition of those offenses. AS 28.35.050-.060.

10399239

VILLAGE OF CHEFORNAK, Appellant, v. HOOPER BAY CONSTRUCTION COMPANY, an Alaskan Corporation, Appellee

Village of Chefornak v. Hooper Bay Construction Co.

1988-07-08

No. S-2221

1266

1271

758 P.2d 1266

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

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

VILLAGE OF CHEFORNAK, Appellant, v. HOOPER BAY CONSTRUCTION COMPANY, an Alaskan Corporation, Appellee.

VILLAGE OF CHEFORNAK, Appellant, v. HOOPER BAY CONSTRUCTION COMPANY, an Alaskan Corporation, Appellee. No. S-2221. Supreme Court of Alaska. July 8, 1988. David S. Case, Anchorage, for appellant. David E. Kohfield, Anchorage, for appel-lee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2574

15796

OPINION BURKE, Justice. Chefornak, a municipal corporation, contracted with Hooper . Bay Construction Company for the removal of boulders from the river channels used by Chefornak residents. For reasons that are not apparent from the record, a dispute developed between the parties, and, on October 22,1984, Hooper Bay filed suit for breach of the contract. In its answer, the city denied any breach and alleged that the project was incomplete. Dale Curda, Chefornak's attorney at the time, deposed several witnesses and subsequently advised the city to settle the lawsuit. The city contends that at a regular city council meeting on August 18, 1985, the city council decided against settling. Four days later, on August 22, 1985, Mr. Curda flew to Chefornak specifically to discuss the prospect of settlement with the city council. What happened at the August 22 meeting is hotly disputed. Mr. Curda contends that he carefully explained the potential ramifications of settlement, that all discussions were translated into Yupik for the non-English speaking attendees, that he explained that the sole purpose of the meeting was to discuss settlement, that those present advised him to settle, and that he left with no doubt in his mind that settlement was authorized. On the other hand, the city contends, via several affidavits of those present at the meeting, that the council members never agreed with Mr. Curda that the case should be settled. The city points out that, as Yupik-speaking people, they did not understand the exact purpose of the meeting. For example, one affiant stated that he does "not know what the word 'judgment' means." A month after this meeting, Mr. Curda signed a stipulation for entry of judgment against the city for $78,000 upon the terms to which he believed the city had agreed. A superior court judge entered final judgment in accordance with the stipulation. Mr. Curda states that he subsequently mailed copies of the final judgment and stipulation to Chefornak, and he began working to procure a state grant to help Chefornak pay the judgment. He was in close contact with the city, and advised it to submit a grant request. Nonetheless, the city did not do so. Chefornak did, however, give a check for $8,500, dated October 3, 1985, to Hooper Bay, and wrote on the check stub "payment for stipulated judgment between Hooper Bay Construction Co. and the Village of Chefornak." When Chefornak failed to make any further payments in accordance with the judgment, Hooper Bay's successor-in-interest to the judgment filed a "Motion for Relief in the Nature of Mandamus," seeking to compel payment. In response, the city argued that the judgment could not be enforced because it violates the Alaska Constitution's municipal debt restriction. Chefor-nak also moved to set aside the judgment (1) under Civil Rule 60(b)(4), on the basis that violation of the constitutional debt limit renders the judgment void; (2) under Rule 60(b)(6), for "any other reason," based on a "complete lack of understanding and knowledge" of the judgment entered and the terms thereof; and (3) under Rule 60(b), for fraud on the court, based on the contention that Mr. Curda's actions distorted the judicial process. The superior court granted Hooper Bay's motion and denied Chefornak's motion to set aside the judgment. Chefornak appeals. We affirm the trial court's decision. A. The Constitutional Debt Limitation Article IX, section 9 of the Alaska Constitution provides: No debt shall be contracted by any political subdivision of the State, unless authorized for capital improvements by its governing body and ratified by a majority vote of those qualified to vote and voting on the question. Chefornak contends that, by entering into a settlement in the suit by Hooper Bay, the city obligated itself to pay $78,000, and thus "contracted a debt" in violation of this provision. It claims that to enforce the judgment would violate public policy. In addition, the city claims that the judgment is void and, under Civil Rule 60(b)(4), unenforceable. . Hooper Bay, on the other hand, contends that article IX, section 9 applies only to debt financing and the incurring of bonded indebtedness, and is, therefore, inapplicable in the present context. The question thus presented is whether a judgment entered upon a settlement stipulation is a "debt . contracted" in the constitutional sense. Although we have never before interpreted this phrase, we note that every previous Alaska case involving section 9 has concerned bonding issues. See, e.g., North Slope Borough v. Sohio Petroleum, 585 P.2d 534 (Alaska 1978) (question of tax levy on borough's debt service on general obligation bonds); Wright v. City of Palmer, 468 P.2d 326 (Alaska 1970) (question of whether bonds issued to encourage industrial development were valid); City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962) (question whether city's issuance of bonds was for a "capital improvement"). Likewise, every Alaska case involving the parallel constitutional provision applicable to state debts has concerned bonding issues. See, e.g., Thomas v. Rosen, 569 P.2d 793 (Alaska 1977) (question whether governor may exercise item veto as to general obligation bond issue). In order to ascertain what the framers meant by "debt . contracted," it is useful to look at the minutes of the Alaska Constitutional Convention, which show clearly that Article IX, section 9 was intended to refer to a municipality's right to borrow money. For example, after the reading of proposed article IX, one delegate stated that "section 9 and 10 . seem[ ] to be a limitation on the right of the state to borrow money." 2 Proceedings of the Alaska Constitutional Convention 1112 (December 19, 1955). Likewise, other delegates referred to sections 8 and 9 as "the one[s] on the matter of bonded indebtedness," "a necessary safeguard against excessive bonding," and the "basic rules [for state and local governments] before they can bond." 3 id. at 2317, 2337, 2342 (January 16, 1956). Indeed, one version of section 9, adopted by the delegates prior to a subsequent stylistic change, provided that no debt would be contracted unless a "majority of the qualified voters of the respective political subdivisions approve the bond issue." See 4 id. at 2423 (January 17, 1956) (emphasis added). Thus, we think it clear that the framers of our constitution intended section 9 to restrict a municipality's ability to voluntarily borrow funds or issue bonds. We find no evidence of an intent to insulate cities from valid judgments. The Arizona Supreme Court interpreted the term "debt," as used in that state's constitution, to apply only to borrowed funds. In determining that the state's retirement system was constitutional, although it created an unfunded liability, the court found the constitutional debt limitation inapplicable. It noted that "debt," as commonly understood, includes every obligation to pay money, but that the term is much less comprehensive when used in the constitutional sense. Rochlin v. State, 112 Ariz. 171, 540 P.2d 643, 647 (1975). The court explained: A debt in the constitutional sense arises when the State or a political subdivision borrows money. This obligation created by the loan of money is usually evidenced by a bond, but can be created by the issuance of paper bearing a different label. Id. Similarly, the Supreme Court of Washington held that a constitutional limitation on the state's ability to "contract debts," Wash.Const. art. VIII, § 1-3, is inapplicable except in situations involving borrowed money. State ex rel. Wittier v. Yelle, 65 Wash.2d 660, 399 P.2d 319, 324 (1965). The court stated: This court has many times said what Article 8 means by the word "debt." We think that it means borrowed money; it denotes an obligation created by the loan of money, usually evidenced by bonds but possibly created by the issuance of paper bearing a different label. Id. The court also noted that all the Washington cases which had arisen thus far under the constitutional provision in question had concerned borrowed money and the issuance of bonds. Id. 399 P.2d at 325. We now adopt an interpretation of article IX, section 9 which comports with the foregoing authorities, and with what we perceive to have been the clear intent of the section's drafters. We conclude that the restrictions on contracting debt contained in article IX, section 9 are applicable only where a political subdivision has endeavored to borrow money, via the issuance of bonds or other paper indebtedness. Since the judgment entered against Chefornak involved no such borrowing, the city's motion for relief from judgment based on the constitutional debt restrictions was properly denied. B. Availability of Relief for "Any Other Reason" Civil Rule 60(b) provides in part: On motion and upon such terms as are just, the court may relieve a party . from a final judgment . for the following reasons: (1)mistake, inadvertence, surprise or excusable neglect; (6) any other reason justifying relief from the operation of the judgment. The rule further provides that a motion under 60(b)(1) must be brought within one year of the date of notice of judgment, but a motion under 60(b)(6) "shall be made within a reasonable time." Alaska R.Civ.P. 60(b). Chefornak did not bring its 60(b) motion within one year, and therefore it cannot obtain relief on the basis of mistake or excusable neglect. The city argues, however, that the combination of language and cultural barriers, the city council's lack of understanding of the judicial process, and the misinformation or lack of information provided to the council combine to make up "any other reason justifying relief." In O'Link v. O'Unk, 632 P.2d 225, 229 (Alaska 1981), we stated that "[cjlause (6) is reserved for extraordinary circumstances not covered by the preceeding clauses." In addition, we have made clear that "clause (6) and the first five clauses of Rule 60(b) are mutually exclusive. Relief under clause (6) is not available unless the other clauses are inapplicable." Farrell v. Dome Laboratories, 650 P.2d 380, 385 (Alaska 1982) (footnote omitted). Thus, Chefornak is entitled to 60(b)(6) relief only if the circumstances are "extraordinary;" it cannot rely on Rule 60(b)(6) in order to circumvent the time limit if the circumstances actually amount to a 60(b)(1) claim. Chefomak's allegations that its officers do not speak English and therefore did not understand or become aware of the judgment against the city are not "extraordinary," nor do they amount to a claim for something more than a mistake or excusable neglect under Rule 60(b)(1). The city's allegations of miscommunication are, if anything, a misunderstanding intended to be covered by Civil Rule 60(b)(1). Thus, Chefornak is not entitled to relief under Civil Rule 60(b)(6). See Stone v. Stone, 647 P.2d 582, 586 (Alaska 1982) (motion which could have been brought under other provision of Rule 60(b) was barred when brought under Rule 60(b)(6) because more than one year had passed). Chefornak also argues that Mr. Curda's actions amounted to a fraud on the court, thus entitling them to relief under Civil Rule 60(b). Chefornak admits that there is no evidence that Mr. Curda had any actual intent to defraud the court. Nonetheless, it claims that Mr. Curda's conduct, in failing to secure the city's knowing consent and failing to adequately explain the consequences of the judgment, amounts to fraud. To constitute fraud on the court under Rule 60(b), conduct must be so egregious that it involves a corruption of the judicial process. See Stone, 647 P.2d at 586 n. 7; Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976). We have also said that fraud may be found even in the absence of intent to defraud. Mallonee v. Grow, 502 P.2d 432, 438 (Alaska 1972). Here, however, Chefomak's allegations simply fall short of any "behavior which defiles the court itself." Id. Mr. Curda made extensive efforts to explain everything to the city council members, and, as Judge Fraties wrote in his opinion, "[i]t is difficult to surmise what more could have been done." CONCLUSION The judgment entered against Chefornak on the basis of the signed stipulation does not violate article IX, section 9 of the Alaska Constitution. The judgment is not a "debt . contracted" as that term is used in our constitution. Thus, the judgment may not be set aside on the ground that it was void. Second, the judgment should not be set aside for "any other reason," or because it results from "fraud upon the court;" the circumstances here are not extraordinary or egregious. We affirm. . Funds for the rock removal project had been appropriated to the city by the 1982 Alaska legislature. In 1985, one-half of the original amount was reappropriated to a neighboring city. . Several months earlier, Hooper Bay had assigned the $78,000 judgment to the law firm of Cummings and Routh, as security for unrelated legal services. Hooper Bay subsequently defaulted on that agreement, and the assignment of the judgment became absolute. Thus, Cummings and Routh filed the motion as assignees of Hooper Bay's interest. For clarity, the appel-lee will be referred to as Hooper Bay throughout this opinion. . Civil Rule 60(b) provides: On motion and upon such terms as are just, the court may relieve a party . from a final judgment . for the following reasons: (4) the judgment is void[.] . Article IX, section 8 of the Alaska Constitution provides in part: No state debt shall be contracted unless authorized by law for capital improvements or unless authorized by law for housing loans for veterans, and ratified by a majority of the qualified voters of the State who vote on the question. This section also provides for certain exceptions, such as debt contracted to repel invasion, suppress insurrection, and defend the state in war. . Originally, section 8 provided debt restrictions for both the state and its political subdivisions. This section was subsequently divided into two separate provisions; section 8 concerns state debts, and section 9 concerns political subdivision debts. 4 Proceedings of the Alaska Constitutional Convention 2421 (January 17, 1956). Thus, statements about section 8 often refer to what ultimately became section 9. . Other jurisdictions have also interpreted constitutional debt limitations as inapplicable in situations similar to that in the case at bar. See DeKalb County v. Georgia Paperstock, 226 Ga. 369, 174 S.E.2d 884, 886-87 (1970) (damages imposed on county for breach of contract are not an indebtedness within the meaning of the Georgia constitution); Thomas O'Connor & Co. v. City of Medford, 16 Mass.App.Ct. 10, 448 N.E.2d 1276, 1278-79 (1983) (statutory prohibition upon municipality incurring a liability relates to municipal finance, and will not shield the city from liability for contract breach); City of Houston v. United Compost Services, 477 S.W.2d 349, 356 (Tex.Civ.App.1972) (constitutional debt restriction does not apply to obligation imposed by law for breach of contract). . At the hearing on the 60(b) motion, counsel for Chefornak told Judge Fraties "[i]f [the city] had done it, filed a motion before this court a month or so earlier ., we would be arguing that this was just excusable neglect." . Civil Rule 60(b) specifically provides that it "does not limit the power of a court to . set aside a judgment for fraud on the court."

10393849

Paul A.L. NELSON, Petitioner, v. Loretto L. JONES, Respondent

Nelson v. Jones

1990-02-23

No. S-2663

1031

1036

787 P.2d 1031

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

Paul A.L. NELSON, Petitioner, v. Loretto L. JONES, Respondent.

Paul A.L. NELSON, Petitioner, v. Loretto L. JONES, Respondent. No. S-2663. Supreme Court of Alaska. Feb. 23, 1990. William E. Olmstead and Loren Domke, Domke & Olmstead, P.C., Juneau, for petitioner. Thomas W. Findley, Findley & Pallen-berg, Juneau, for respondent. Shelley K. Owens, Juneau, for amicus guardian ad litem. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

2818

17250

OPINION RABINOWITZ, Justice. I. INTRODUCTION. Petitioner seeks review of the superior court's denial of his discovery requests. II. FACTS AND PROCEEDINGS. The present action is the fourth legal proceeding involving allegations by Jones that Nelson had sexually abused their daughter T. The underlying litigation out of which this petition arises was instituted by Nelson against Jones for abuse of process, malicious prosecution, and defamation. The first legal proceeding between these parties commenced in September 1985, when Jones reported to the police that Nelson had sexually abused their daughter. Nelson was thereafter arrested and an indictment was returned charging him with second-degree sexual abuse of a minor. All criminal charges were dismissed on January 21, 1986. One week later, the second legal proceeding was filed. Based on the same allegations as the criminal case, the Division of Family and Youth Services of the State of Alaska filed a petition to adjudicate the parties' daughter as a child in need of aid. That proceeding was dismissed in August 1986. On August 27, 1986, Barbara Walker was appointed guardian ad litem (GAL) for the child in the then pending divorce action (the third legal proceeding) between Jones and Nelson. After the third day of trial in the divorce action the parties reached a settlement, which gave custody of the child to Jones and visitation rights to Nelson. Nelson thereafter instituted the present abuse of process, malicious prosecution, and defamation case to "clear his name" of Jones' allegations of sexual abuse of their child. In preparation for trial Nelson served the GAL with a Notice of Deposition and Subpoena to Produce. The sub poena was quashed. Nelson next moved that the superior court release gynecological photographs taken by Dr. Claudia Foster, to whom Jones had taken the child for examination. The photographs had been sealed and delivered to the GAL's custody after the conclusion of the superior court proceedings in the divorce action. Nelson also moved to depose Dr. Foster and Dr. Dennis Batey, to whom Jones had also taken the child to be examined. Dr. Foster had testified during the divorce hearing. Dr. Batey had testified before the grand jury, but not during the divorce proceedings. The superior court denied both of Nelson's motions. The court found as follows: 1. . [T, the child] does have a privilege to keep private: (a) the photos, and (b) information between physician/patient possessed by Doctors Batey and Foster; 2. that this privilege was not waived by the GAL's consent in the divorce and Child In Need of Aid proceedings to the use of this evidence in those proceedings; 3. that the GAL has standing to assert [T's] rights in this proceeding; 4. that the GAL is precluded under AS 47.17.040(b) and Alaska Rule of Evidence 503 [attorney-client privilege] from releasing information acquired in her role as GAL. Nelson petitioned for review of this decision and order, and we granted the petition. III. DISCUSSION. A. Res Judicata — Compulsory Counterclaims. Jones argues that the issues presented in this petition have been mooted by application of the doctrine of res judica-ta. In DeNardo v. State, 740 P.2d 453, 455-56 (Alaska 1987), cert, denied, 484 U.S. 919, 108 S.Ct. 277, 98 L.Ed.2d 239 (1988), we discussed the subject of res judicata, noting the following principles: 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. Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska 1976) (quoting IB J. Moore, Moore's Federal Practice ¶ 0.405, at 621 (2d ed.1980)); accord, Calhoun v. Greening, 636 P.2d 69, 71-72 (Alaska 1981); Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977). 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." Drickersen, 546 P.2d at 169 (citations omitted), quoted in Enge-breth, 567 P.2d at 307. It is settled that res judicata precludes relitigation by the same parties, not only of claims raised in the first proceeding, but also of those relevant claims that could have been raised. Calhoun, 636 P.2d at 72; see also Pankratz v. State, Dep't of Highways, 652 P.2d 68, 74 (Alaska 1982). 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," State v. Smith, 720 P.2d 40, 41 (Alaska 1986) (quoting with approval Restatement (Second) of Judgments § 24(a) (1982)); a mere change in the legal theory asserted as a ground for recovery will not avoid the preclusive effect of the judgment. Id; Pankratz, 652 P.2d at 74. Jones' res judicata arguments are predicated on the compulsory counterclaim principles articulated in Civil Rule 13(a). In this regard Nelson concedes that "it may be argued [that] each [of the causes of action in the instant case] arises out of some of the transactional events of the divorce." The question, therefore is whether inter-spousal tort claims are claims which, because of the command of Rule 13(a), should have been litigated in the divorce proceeding. We conclude that it would be an inappropriate construction of Rule 13(a), and of the principles of res judicata which we have adopted, to require tort actions between married persons to be litigated in the divorce proceeding. In reaching this conclusion we find the analysis of the Court of Appeals of Wisconsin in Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505 (1988), affg, 140 Wis.2d 455, 410 N.W.2d 632 (App.1987) persuasive. There the court quoted the decision of the court below for the proposition that: "Although joinder is permissible, the administration of justice is better served by keeping tort and divorce actions separate . Divorce actions will become unduly complicated if tort claims must be litigated in the same action. A divorce action is equitable in nature and involves a trial to the court. On the other hand, a trial of a tort claim is one at law and may involve, as in this case, a request for a jury trial. Resolution of tort claims may necessarily involve numerous witnesses and other parties such as joint tort-feasors and insurance carriers whose interests are at stake. Consequently, requiring joinder of tort claims in a divorce action could unduly lengthen the period of time before a spouse could obtain a divorce and result in such adverse consequences as delayed child custody and support determinations. The legislature did not intend such a result in enacting the divorce code. See sec. 767.12(1), Stats." 140 Wis.2d at 466-67, 410 N.W.2d 632. Id., 421 N.W.2d at 508. Also of significance is the Supreme Court of Idaho's decision in Nash v. Overholser, 114 Idaho 461, 462, 757 P.2d 1180, 1181 (1988). There the court stated: Ordinarily, the doctrine of res judicata requires that all claims or issues which were, or could have been, litigated in a previous action between the same parties, are barred from later prosecution. McDonald v. Barlow, 109 Idaho 101, 705 P.2d 1056 (Ct.App.1985); Duthie v. Lewi-ston Gun Club, 104 Idaho 751, 663 P.2d 287 (1983); Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980). Further, Idaho courts have jurisdiction to, and have in fact, addressed and resolved issues of intentional wrongful conduct occurring during the course of marriage while handling general divorce proceedings. Milbourn v. Milbourn, 86 Idaho 213, 384 P.2d 476 (1964). Nash's allegations could have been litigated during the divorce proceedings. However, there are considerations unique to cases such as this which compel us to acknowledge a narrow exception to our traditional interpretation of the doctrine of res judicata. These concerns are aptly explained in Stuart v. Stuart, 140 Wis.2d 455, 410 N.W.2d 632 (Ct.App.1987), which we cite with approval. (Emphasis in original.) On the basis of the Stuart and Nash decisions, we hold that Nelson's claims against Jones for malicious prosecution, abuse of process, and defamation have not been mooted by application of the doctrine of res judicata. IY. COLLATERAL ESTOPPEL. The GAL argues that Nelson is collaterally estopped from litigating the issue of his sexual abuse of T, and thus the discovery of the evidence sought by Nelson is not relevant and not reasonably calculated to lead to the discovery of admissible evidence as required by Civil Rule 26(b)(1). The GAL bases her collateral estoppel argument on a custody stipulation incorporated in the superior court's Memorandum Decision and Order in the divorce action which the parties entered into after three days of trial. The superior court's Memorandum Decision and Order in the divorce action reads in relevant part as follows: Their custody stipulation is in the form of a judgment, which — after review and discussion in chambers and in open court with the parties and the guardian ad litem — was approved and accepted by the court, and is incorporated here in the following paragraphs, ending with paragraph number 12: "This matter having come before this court and the court having considered the testimony of the witnesses, in particular that of Dr. Claudia Foster, the court finds clear and convincing evidence that [T] was sexually abused by her father, Paul Nelson." After the decree was entered in the divorce action, Nelson moved to set aside the custody stipulation and reopen the trial evidence. The superior court denied Nelson's motion. In so ruling, the superior court stated in part: Accordingly, it is the court's view that the new evidence would not probably change the trial results and that there will be no injustice if the trial is not reopened. The bottom line is that even with the after-acquired evidence of the experts, the evidence that Nelson molested his daughter, [T], remains compelling and clear and convincing. The after-acquired evidence might suffice to establish a reasonable doubt sufficient to justify an acquittal from criminal charges, but it does not begin to suffice to overcome the evidence against Nelson. (Emphasis in original). In our recent decision in Nelson v. Jones, 781 P.2d 964 (Alaska 1989), we held that the superior court did not abuse its discretion in denying Nelson's motions to reopen evidence and to set aside the custody — visitation provisions of the divorce decree. More specifically, in sustaining the superior court's holding that Nelson had failed to show duress in connection with his entering into the custody stipulation we said: Paul asserted: "[My] attorney told me that if the court accepted Dr. Foster's testimony and there was no negotiated agreement on custody it was very likely that I would not see my daughter for a year." This assertion is directly contradicted by Paul's attorney. Further, the court had an opportunity to observe Paul at the drafting of the stipulation, commenting thereon in its decision. Id. at 968. In regard to the superior court's ruling concerning Nelson's motion to set aside the decree and for a new trial we held: The court also found that "Paul's new evidence would not probably change the trial results." Although Paul's stipulation was not binding on the trial court, it nonetheless constituted evidence on the issue of abuse. See McClain v. McClain, 716 P.2d 381, 385-87 (Alaska 1986); Cope v. Cope [49 Or.App. 301], 619 P.2d 883, 887 (Or.App.1980), aff'd [291 Or. 412] 631 P.2d 781 (Or.1981). Taken in combination with the evidence at trial, its force would be difficult to counter. The affidavits offered by Paul are not equal to the test. Id. (footnote omitted). In consideration of the above we hold that Nelson is collaterally estopped from litigating the issue of his sexual abuse of T. It follows that the evidence sought by Nelson is neither relevant, nor reasonably calculated to lead to the discovery of admissible evidence as required by Civil Rule 26(b)(1). We set forth the elements of collateral estoppel in Shepherd v. Bering Sea Originals, 578 P.2d 587 (Alaska 1978): While the general rule of res judicata applies to repetitious suits involving only the same cause of action it has been employed in situations where the second action between the same parties is upon a different cause or demand. But in the latter event the judgment in the prior action operates as an estoppel not as to matters which might have been litigated and determined, but only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. Res judica-ta is then more accurately referred to as collateral estoppel or estoppel by judgment. Id. at 589 (quoting State v. Baker, 393 P.2d 893, 896-97 (Alaska 1964)). Application of these principles leads us to the conclusion that the issue whether Nelson sexually abused T was litigated at the superior court level, and that upon consideration of Nelson's custody stipulation and other evidence adduced both at the trial and post-trial, the superior court explicitly determined the issue adversely to Nelson. Therefore we hold that the superior court did not err in making any of the discovery rulings challenged in this petition. AFFIRMED. . Briefing was ordered as to the following issues: (a) Were the gynecological photographs of the parties' daughter privileged and therefore unavailable to Nelson in his action against Jones? Was any such privilege waived by the use of those photographs in the parties' divorce hearing? (b) May the doctor who examined the parties' daughter, took the photographs at issue, and testified using the photographs at the divorce hearing, successfully assert the physician-patient privilege on the child's behalf, and thereby refuse to be deposed by Nelson in this action? (c) Is the information gained by the child's lay guardian-ad-litem in the course of guardianship privileged and exempt from discovery under AS 47.17.040(b), Evidence Rule 503 (attorney-client privilege), or Evidence Rule 504 (physician-patient privilege)? (d) Did the superior court err in precluding the petitioner Paul Nelson from taking Dr. Batey's testimony? The petition was denied as to all other issues. . Civil Rule 13(a) states: Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. . See also Lord v. Shaw, 665 P.2d 1288, 1291 (Utah 1983); Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157, 1158 (1971). . As noted above, one of the requirements of collateral estoppel is that the issue must have been actually litigated in the prior action. Restatement (Second) of Judgments § 27 (1982). An issue is actually litigated when it is "submitted for determination." Id. comment d at 255. The Restatement further states that an issue is not actually litigated if it is the subject of a stipulation between the parties. A stipulation may, however, be binding in a subsequent action between the parties if the parties have manifested an intention to that effect. Furthermore under the rules of evidence applicable in the jurisdiction, an admission by a party may be treated as conclusive or be admissible in evidence against that party in a subsequent action. Id., comment e at 257 (emphasis added). In Anderson, Clayton & Co. v. United States, 562 F.2d 972 (5th Cir.1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978), the Fifth Circuit stated: "When one party . concedes or stipulates the issue upon which the court bases its judgment, the issue is not conclusively determined for purposes of collateral es-toppel unless it is clear that the parties so intended. " See abo Balbirer v. Austin, 790 F.2d 1524, 1527-28 (11th Cir.1986). We conclude that a remand is not necessary for the purpose of ascertaining the parties' intent as to the effect of the custody stipulation. As noted above, our review of the record in the divorce proceeding persuades us that the issue of Nelson's sexual abuse of T was actually litigated in that proceeding.

10551513

Bernard I. MILLER, Appellant, v. CITY OF FAIRBANKS and Fairbanks North Star Borough, Appellees

Miller v. City of Fairbanks

1973-05-02

No. 1678

826

832

509 P.2d 826

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

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

Bernard I. MILLER, Appellant, v. CITY OF FAIRBANKS and Fairbanks North Star Borough, Appellees.

Bernard I. MILLER, Appellant, v. CITY OF FAIRBANKS and Fairbanks North Star Borough, Appellees. No. 1678. Supreme Court of Alaska. May 2, 1973. Bernard I. Miller, in pro. per. Francis van T. Kernan, Fairbanks, for appellees. Before RABINOWITZ, C. J., and CON-NOR, ERWIN and BOOCHEVER, JJ.

2968

18215

OPINION RABINOWITZ, Chief Justice. City of Fairbanks, on behalf of itself and the Fairbanks North Star Borough, filed a civil action against Miller. The complaint alleged that Miller was violating various city and borough ordinances by (1) sealing off the open end of his garage located at 653 8th Avenue without first obtaining a building permit, (2) removing a city "stop work order" from his garage, and (3) failing to have any required off-street parking space. The city and borough sought injunctive relief prohibiting Miller from further violating the ordinances and requiring him to return his building to its former use as a garage. In his answer to the complaint, Miller generally denied every allegation and counterclaimed, asserting that a city building official violated various city ordinances in his enforcement of the City Building Code by (1) entering upon Miller's property without first displaying proper credentials and requesting permission to enter, (2) entering Miller's premises after the official had been denied permission to enter, and (3) enforcing city ordinances with malice and in bad faith. By way of relief, Miller sought general damages for himself and special damages for injuries to his mother's health resulting from the building official's acts. Thereafter, the city moved for a summary judgment. The motion was supported by a memorandum of law and affidavits from the city building official involved and from the city fire inspector. Miller filed an opposing affidavit in which he merely reasserted his general denial. The trial court then granted Miller's informal request for additional time within which to retain an attorney or demonstrate the existence of a factual issue. The trial court ultimately granted the city's motion for summary judgment. At the outset, we note Miller's failure fully to comply with our rules for preserving and raising issues on appeal. In contravention of Supreme Court Rule 9(e), Miller's propria persona brief attempts to raise issues which his Statement of Points on Appeal fails to list. Further, Miller has not briefed 18 of his 19 points on appeal, thus abandoning them under Supreme Court Rule 11(a)(8). Nor has Miller made a sufficient showing that he will suffer surprise or injustice if the rules are strictly enforced against him. Nevertheless, since he is without counsel, we have decided to dispose of this appeal on what we consider to be the main issues recognized by both parties in.their briefs; namely, whether there existed material issues of fact to be tried, and whether the judgment was sufficiently certain in its terms to be enforceable. Since the city moved for summary judgment, it had the initial burden of establishing the absence of a genuine issue as to any material fact. Once the city sustained this burden, it became encumbent upon Miller, in order to prevent entry of summary judgment, to set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute or contradict the city's evidence, and thus demonstrate that a material issue of fact existed. In attempting to satisfy their respective burdens, the parties may utilize pleadings, affidavits, and any other materials otherwise admissible in evidence. With these principles in mind, we hold that the superior court's entry of summary judgment was proper as it pertains to in-junctive relief against Miller's violations of the City Building Code and Borough Zoning Ordinance. Section 301 (a) of the Building Code prohibits anyone from altering any building in the city without first obtaining from the building official a permit for such alterations. The affidavit of the city building official stated that Miller had altered his garage by closing its open end without a permit. In his affidavit, the city fire inspector stated that substantial work had been performed on Miller's garage to convert it into living quarters. Both affiants based their statements on personal observations of Miller's premises. In one of his affidavits filed in opposition, Miller admitted removing the garage door and closing the opening, but stated his actions complied with advice from the city building department. His memorandum amplified this as serted justification by attempting to fit his construction work within an informal exemption from the permit ordinance for alterations not exceeding $100 in value. But the critical failure here is that Miller never asserted by affidavit that this alteration did not exceed the $100 limit. Section 202(e) of the Building Code authorizes the city building official to stop construction work carried out in violation of section 301(a) by affixing a "stop work order" to the construction site. Once the stop work order is placed on the site, all construction must cease until the building official removes the order and authorizes the work to proceed. The record before us shows that the city building official did affix a stop work order to Miller's premises, and that Miller removed it and continued his construction without a permit. In an attempt to counter the building official's affidavit, Miller relies upon an affidavit in which he restates his general denial, and upon the allegations contained in his counterclaim to the effect that the city building official violated other Fairbanks ordinances in posting the stop work order. While the building official's allegedly illegal enforcement of the construction permit ordinance might form the basis of a counterclaim, it is not a defense to violations of the permit and stop work order provisions. Those ordinances are concerned solely with requiring permits before beginning construction work not with the mode of their enforcement. One point remains with respect to the Borough Zoning Ordinance. Miller's memorandum attempts to challenge the city's authority to enforce the borough's ordinance by suit. He points out that, although the borough was named as a party plaintiff, the borough attorney had not yet entered an appearance at the time the motion was decided. Miller indicates that the city had not averred its capacity to sue on behalf of the borough. Even if we construe his informal challenge as an attempt to raise the issue of the city's capacity to sue, Miller cannot prevail. Under Civil Rule 9(a), [i]t is not necessary to aver the capacity of a party to sue . or the authority of a party to sue . . . in a representative capacity . . . except to the extent required to show the jurisdiction of the court. Moreover, Miller is attempting to raise the capacity to sue issue in a procedurally impermissible and untimely fashion. Civil Rule 9(a) requires that the capacity of a party to sue be raised by a "specific negative averment, not by a general denial." And, since the objection came five months after the suit was commenced, it does not comply with our requirement that such a challenge must be part of the defendant's answer or be deemed waived. Furthermore, we do not think this is an appropriate situation for relaxing our civil rules, since the borough attorney entered an appearance before final judgment was entered, thereby effectively ratifying the city attorney's enforcement of the zoning ordinance. In regard to Miller's informal challenge to the building official's and city fire inspector's affidavits as "misstate- merits of fact in all or major part," we noted in Wilson v. Pollet, that impeachment of the movant's evidence on material matters raises an issue of credibility to be resolved at trial. But in order to put the affiant's credibility in issue, specific facts must be properly produced. It is well established that statements not made under oath, such as those in Miller's informal papers, do not meet the standards prescribed by Civil Rule 56(d). Consequently, Miller's assertions are not considered as evidence on a summary judgment motion and did not have the effect of placing either the building official's or the city fire inspector's credibility in issue. Even if we were to consider Miller's informal challenge, he failed to indicate which, if any, portions of the affidavits could fairly be characterized as misstatements of fact. We next turn to the summary judgment's dismissal of Miller's counterclaim. Miller's counterclaim and sworn affidavit allege the following: that on July 13 and again on July 16, 1971, the city building official entered Miller's house without first presenting his credentials and demanding entry as required by Building Code Section 202(d) ; that on July 13, Miller refused the official permission to enter his house, telling him he would need the court order contemplated by section 202(d) in order to inspect the premises; that the official responded by calling Miller a "troublemaker" and informing him of intentions to report various building code violations to the city attorney. As mentioned previously, these actions by the city building official form the basis of Miller's prayer for damages to his mother's health and for other relief the court might deem proper. In answer to these allegations, the city merely filed a general denial. Nowhere in its formal papers supporting the motion for summary judgment has the city specifically denied the allegations set forth in Miller's counterclaim. Thus, the city failed to sustain its burden of establishing the absence of any material issue of fact. As to Miller's counterclaim, the city's motion for summary judgment should be denied unless it appears to a certainty that Miller is entitled to no relief under any state of facts that could be proved in support of his claim. While not artfully drafted, Miller's allegations, if true, form a proper claim for relief against the city sounding in such tort concepts as trespass and invasion of privacy. We therefore hold that the trial court erred in granting summary judgment dismissing Miller's counterclaim. Turning to the last issue in this appeal, we reject Miller's argument that the trial court's judgment is void because it lacks certainty. It is essential that a judgment dispose of the matters at issue so that the parties may be able to ascertain with reasonable certainty the extent to which their rights may be fixed. An auxiliary principle to determining whether the judgment meets the certainty requirement is the following: A judgment is sufficient if it can be made certain by reference to pleadings and documents on file in the case, and upon examination of the whole record its sense can be clearly ascertained. In the case at bar, the questioned portion of the judgment required that defendant return this building to its former use, as a garage in compliance with the Fairbanks North Star Borough Zoning Ordinances Sec. 41.15.130 and Schedule D thereof. Since these ordinances were part of the record in this case, we hold that the judgment in question is sufficiently defined to withstand Miller's void for vagueness attack. We therefore affirm in part and reverse in part the summary judgment entered by the trial court and remand the case for further proceedings in confirmity with this opinion. FITZGERALD, J., not participating. . Fairbanks Code of Ordinances § 9.401.1 (§ 301(a) of the Building Code) provides in part: Permits required. No person, firm or corporation shall erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure in the city, without first obtaining a separate building permit for each building or structure from the Building Official, or bis authorized representative. . Fairbanks Code of Ordinances § 9.401.1 (§ 202(e) of tlie Building Code) jaro vides : Stop work orders. Whenever any building work is being done contrary to the provisions of this Code, the Building Official, or his authorized representative, may order the work stopped by affixing to the job site, or building where construction is in progress, a 'stop work order' stating the reasons for such order. When any stop work order is placed upon any construction work, or job site, all work being constructed by any craft whatsoever shall cease until the stop work order is removed and the work authorized to proceed by the building official or his authorized representative. . At all times relevant to this action, Fairbanks North Star Borough Code of Ordinances § 49.15.130 provided in part: Off-Street Parking. Off-street parking is required in all zones except the Unrestricted Use Zone. . . . No required off-street parking space shall be located in a required street yard. Required off-street parking spaces for one lot shall average at least 200 square feet in area and shall be easily accessible from a public street. . (Emphasis added.) Fairbanks North Star Borough Ordinance § 49.15.160, Schedule D, requires one off-street parking space per dwelling unit. . Fairbanks Code of Ordinances § 9.401.1 (§ 202(d) of the Building Code) states in part: Right of Entry. Whenever necessary to make an inspection to enforce any of the provisions of this Code, or whenever the Building Official or his authorized representative has reasonable cause to believe that there exists in any building or upon any premises, any condition which makes such building or premises unsafe as defined in Section 203 of this Code, the Building Official or his authorized representative may enter such building or premises at all reasonable times to inspect the same or to perform any duty imposed upon the Building Official by this Code; provided that if such building or premises be occupied, he shall first present proper credentials and demand entry; and if such building or premises be unoccupied, he shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and demand entry. If such entry is refused, the Building Official or his authorized representative shall have recourse to every remedy provided by law to secure entry. . Fairbanks Code of Ordinances § 6.253 provides: No person, firm, association or corporation, other than a peace officer on lawful business, shall trespass on lands or premises of another, and fail, neglect, or refuse to depart therefrom immediately on request of the owner or any person in the lawful occupation of said lands or premises. . Fairbanks Code of Ordinances § 9.401.1 (§ 202(g) of the Building Code) provides : Liability. The Building Official or any employee charged with the enforcement of this Code, acting in good faith and without malice for the city in the discharge of his duties, shall not thereby render himself liable personally and he is hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or by reason of any act or omission in the discharge of his duties. Any suit brought against the Building Official or employee, because of such act or omission performed by him in the enforcement of any provisions of this Code, shall be defended by the legal department of the city until final termination of the proceedings. . See Orbeck v. Wheeler Constr. Co., 394 P.2d 781, 783 (Alaska 1964); Vogt v. Winbauer, 376 P.2d 1007, 1009-1010 (Alaska 1962); cf. Cook v. Aurora Motors, Inc., 503 P.2d 1046 (Alaska 1972). . Instances in which this court has relaxed the necessity for strict adherence to its appellate rules include Lapham v. Town of Haines, 372 P.2d 376, 377 (Alaska 1962); Bailey v. Fairbanks Independent School Dist., 370 P.2d 526, 529 (Alaska 1962). It has been noted that relaxation of appellate rules might be especially appropriate in cases where a layman represents himself. Sanuita v. Common Laborer's and Hod Carriers Union, 402 P.2d 199, 206 (Alaska 1965) (Rabinowitz, J., dissenting). Since the appellee has briefed the only issues of any merit, it will not be prejudiced by our decision to overlook noncomplianee with Supreme Ct. R. 9(e). Cf. Rego v. Decker, 482 P.2d 834, 841 (Alaska 1971). . E. g., Braund, Inc. v. White, 486 P.2d 50, 54 (Alaska 1971). . Id.; Isler v. Jensen, 382 P.2d 901, 902 (Alaska 1963). . Civ.R. 56(c); 6 J. Moore, Federal Practice ¶ 56.5, 56.11 [1.-8] (2d ed. 1972). . The city apparently concedes the existence of this exemption. . Though appellant has not raised this point explicitly, we note that any due process infirmity in the summary stop work order ordinance is rectified by the right to appeal such orders under Fairbanks Code of Ordinances § 9.401.1, 9.404 (§§ 204, 206 of the Building Code). We also agree that appellees are entitled to summary judgment regarding § 49.15.130 and Schedule D of the Fairbanks North Star Borough Ordinances which require each dwelling unit in Miller's residential zone to have one off-street parking space of 200 square feet. . See Smith v. Sellar, 371 P.2d 809, 810-811 (Alaska 1962); Brown v. Music Corp., 359 P.2d 295, 300, 301 (Alaska 1961) ; 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1295 (1969). Compare Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972). . See Civ.R. 94. . 416 P.2d 381, 384 (Alaska 1966). See also Braund, Inc. v. White, 486 P.2d 50, 53 n. 3 (Alaska 1971). . See, e. g., Goldman v. Summerfield, 94 U.S.App.D.C. 209, 214 F.2d 858, 859 (1954); Wittlin v. Giacalone, 81 U.S. App.D.C. 20, 154 F.2d 20, 22 (1946); Schoenbaum v. Firstbrook, 268 F.Supp. 385, 390 (S.D.N.Y.1967). . Cf. Boehl v. Sabre Jet Boom, Inc., 349 P.2d 585, 587 (Alaska 1960). . See, e. g., Brown v. Bullock, 194 F.Supp. 207 (S.D.N.Y.) aff'd, 294 F.2d 415 (2d Cir. 1961) ; National Sur. Corp. v. First Nat'l Bank, 106 F.Supp. 302, 304 (D.Pa.1952) ; 5 C. Wright & A. Miller, Federal Practico, and Procedure: Civil § 136S, at 090 (1969). . The prayer for damages for injuries to Miller's mother is improper since she is not a party to this litigation. . See, e. g., State ex rel. Whatley v. Mueller, 288 S.W.2d 405, 410 (Mo.App.1956); Gregory v. State Indus. Comm'n, 360 P.2d 716, 719 (Okl.1961).

10381036

Robert BIRD, Nelson E. Brown, Ronald R. Creasman, Richard D. Dover, Frederick J. Dyson, Esther E. Gower, Della Jo Ann Henson, Ronald A. Mapes, Grace L. Molloy, Ray M. Mosesian, Steven H. Mussman, Lyman G. Nation, Sondra Padgett, Rebecca L. Perry, Jay T. Priest, Gary C. Rumsey, Patricia F. Stafford, Beverly R. Strutz, Edward J. Wassell, Tamara L. Williams, William E. Wimmer, Aharon W. Zorea, Appellants, v. MUNICIPALITY OF ANCHORAGE, Appellee

Bird v. Municipality of Anchorage

1990-02-16

No. 1014

119

123

787 P.2d 119

787

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

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

Robert BIRD, Nelson E. Brown, Ronald R. Creasman, Richard D. Dover, Frederick J. Dyson, Esther E. Gower, Della Jo Ann Henson, Ronald A. Mapes, Grace L. Molloy, Ray M. Mosesian, Steven H. Mussman, Lyman G. Nation, Sondra Padgett, Rebecca L. Perry, Jay T. Priest, Gary C. Rumsey, Patricia F. Stafford, Beverly R. Strutz, Edward J. Wassell, Tamara L. Williams, William E. Wimmer, Aharon W. Zorea, Appellants, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Robert BIRD, Nelson E. Brown, Ronald R. Creasman, Richard D. Dover, Frederick J. Dyson, Esther E. Gower, Della Jo Ann Henson, Ronald A. Mapes, Grace L. Molloy, Ray M. Mosesian, Steven H. Mussman, Lyman G. Nation, Sondra Padgett, Rebecca L. Perry, Jay T. Priest, Gary C. Rumsey, Patricia F. Stafford, Beverly R. Strutz, Edward J. Wassell, Tamara L. Williams, William E. Wimmer, Aharon W. Zorea, Appellants, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 1014. Court of Appeals of Alaska. Feb. 16, 1990. Moshe Calberg Zorea, Anchorage, for appellants. Elaine Vondrasek, Asst. Mun. Prosecutor, Jim Wolf, Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for appellee. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2074

12802

OPINION Before BRYNER, C.J., COATS, J., and FABE , Superior Court Judge. COATS, Judge. Robert Bird and twenty-one co-defendants appeal from their convictions for trespass, in violation of Anchorage Municipal Code § 08.30.010(A). The facts underlying the convictions are not in dispute. On February 13, 1989, the appellants placed themselves in front of the doors of the Alaska Women's Health Services building. They were asked to leave the property by the director of the center. When the appellants refused to leave the property, they were arrested for trespass. The appellants argue that the district court erred in excluding their proffered defense of necessity and in refusing to instruct the jury on the necessity defense. The common law defense of necessity is available to criminal defendants in Alaska except where preempted or excluded by the legislature. To establish the necessity defense the defendant must show that: (1) The act charged was done to prevent a significant evil; (2) there was no adequate alternative; (3) the harm caused was not disproportionate to the harm avoided. Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981) (citing Nelson v. State, 597 P.2d 977; 979 (Alaska 1979)). The defense is available "if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief is mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them." Cleveland, 631 P.2d at 1078. In Cleveland, the supreme court ruled that the defense of necessity was not available to defendants charged with trespassing at an abortion clinic when the alleged necessity was the need to prevent abortions. The defendants in Cleveland, like the appellants here, claimed to have acted in the reasonable belief that their conduct was necessary to prevent an imminent threat to human life, i.e., the abortions they believed were scheduled to be performed that day at the site of the trespass. The supreme court rejected the Cleveland appellants' argument on several grounds. First, the court held that the necessity defense applies only where the alleged harm sought to be avoided arose either from the physical forces of nature or from unlawful human acts. Cleveland, 631 P.2d at 1078-79. Since abortion is not unlawful in this state, the necessity defense would not be available to those who break the law in an effort to prevent abortions. Id. at 1079. Second, adopting the reasoning of the Hawaii Supreme Court in State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the court rejected the appellants' claim to the necessity defense on two grounds: that there had been lawful alternatives available to the appellants, i.e., non-criminal forms of protests; and that their actions were not reasonably designed to actually prevent the threatened greater harm. Cleveland, 631 P.2d at 1079. The court held that, as in the Marley case: [I]t was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity. Id. at 1080. Third, the Cleveland court held that the appellants had failed to show that the harm they sought to avoid was greater than the harm reasonably foreseeable from their actions. The court found that the harm to the Alaska Clinic from the disruption of its schedule, and the emotional distress that would be suffered by the clinic's patients as a result of the invasion of their privacy, were reasonably foreseeable to the trespassers. Against this harm, the court weighed the foreseeable results of the appellants' failure to intervene — the routine performance of abortions. In this balancing of harms, the court deferred to the Alaska Legislature which had enacted a statute regulating but not prohibiting abortion. The court stated: Alaska's legislature has, we think, already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests appellants sought to invade. Thus, we cannot agree that any abortions that were delayed by appellants' demonstration can be characterized as sufficiently harmful to outweigh the harm that was the foreseeable result of appellants' behavior. Id. at 1081 (footnote omitted). The appellants here urge us to distinguish their case from Cleveland. They argue that unlike the trespassers in Cleveland, they were not engaged merely in a general protest of abortion. They contend that their purpose in trespassing at the center on February 13, 1988, was to prevent the specific abortions scheduled to be performed there on that date. The appellants fail to recognize that, the court in Cleveland rejected an identical argument from the appellants in that case. The Cleveland court quoted this characterization of their actions from the appellants' brief: It is vital to understand that these appellants, by their actions on January 6, 1978, were not protesting abortion in general, or engaging in symbolic acts which they hoped would lead the public to sympathize with the prolife cause. Rather, they were directly intervening to protect the particular human lives threatened with imminent destruction at Alaska Hospital and Clinic in the abortion chambers they entered, on that very day. Cleveland, 631 P.2d at 1077. Noting that the appellants' protest "was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities," the court decisively rejected the trespassers' characterization of their actions: We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected. Id. at 1080. We are aware of no significant differences between the trespass here and that in Cleveland which would cause us to depart from this holding. The appellants also argue that the rule of Cleveland is undermined by subsequent decisions of this court recognizing the possibility that the necessity defense may be available to those who seek to avoid harm arising from human acts rather than natural causes. None of these cases, however, are directly in conflict with the Cleveland holding that the harm sought to be avoided by a defendant raising the necessity defense must have emanated either from a natural cause or from illegal human acts. In no case has either this court or the Alaska Supreme Court approved the application of the necessity defense where the harm sought to be avoided was the lawful act of another person. Even if the application of the necessity defense were to be recognized in some such instances in future cases, this would not be fatal to Cleveland. The Cleveland ruling rests on numerous alternative bases, only one of which is the restriction of the necessity defense to situations caused either by the forces of nature or by unlawful human acts. Finally, the appellants argue that the continued validity of the Cleveland decision is called into question by the United States Supreme Court's recent opinion in Webster v. Reproductive Health Services, — U.S. -, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). The appellants contend that the court in Cleveland "relied heavily on Roe v. Wade " in determining that abor tion was not a "harm" for purposes of the necessity defense. They also contend that the Supreme Court in Webster substantially modified Roe v. Wade. Appellants argue that Webster "recognize[d] that abortion is the purposeful killing of life." The appellants' reading of Cleveland is untenable. The court in Cleveland expressly relied not only on Roe v. Wade, but also on the enactment of AS 18.16.010 in deciding whether abortion could be characterized as a harm for purposes of the necessity defense. The appellants in Cleveland had argued that Roe v. Wade was not determinative of the weight to be given to abortion as a competing harm with trespass. In response to this argument the court held: [E]ven assuming that appellants are correct in arguing that Roe v. Wade does not control as to the weight to be accorded "potential life" in this context, the United States Supreme Court is not the only authority to which we must defer in this area. The Alaska legislature is better suited to strike the balance than is this court. Cleveland, 631 P.2d at 1080-81 (footnote omitted). The Cleveland opinion states the law of Alaska regarding the necessity defense. It is not affected by the United States Supreme Court's decision in Webster. In summary, we are bound by the ruling of the Alaska Supreme Court that the necessity defense is not available to those who trespass at abortion clinics in an attempt to prevent abortions. Cleveland is directly on point here; we have been presented with no legitimate distinguishing factors. The appellants' convictions are AFFIRMED. SINGLETON, J., not participating. . Anchorage Municipal Code § 08.30.010 provides in relevant part: A. It is unlawful for any person, firm or corporation to commit a trespass upon either public or private property without consent of the owner of the property. B. Without constituting any limitation upon the provisions of subsection A hereof, any of the following acts by any person, firm or corporation shall be deemed included among those that constitute trespasses in violation of the provisions of subsection A, and appropriate action may be taken hereunder at any time, or from time to time, to prevent or punish any violation or violations of this section. The aforesaid enumerated acts shall include: 3. a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof; . Alaska Statute 11.81.320 provides: Justification: Necessity (a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when (1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and (2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear. (b) The justification specified in (a) of this section is an affirmative defense. . Alaska Statute 18.16.010 reads: Abortions. (a) An abortion may not be performed in this state unless (1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200; (2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Social Services or a hospital operated by the federal government or an agency of the federal government; (3) consent has been received from the parent or guardian of an unmarried woman less than 18 years of age; and (4) the woman is domiciled or physically present in the state for 30 days before the abortion. (b) Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section. (c) A person who knowingly violates a provision of this section, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both. (d) In this section, "abortion" means an operation or procedure to terminate the pregnancy of a nonviable fetus. . See, e.g., Reeve v. State, 764 P.2d 324 (Alaska App.1988); Gerlach v. State, 699 P.2d 358 (Alaska App.1985); Wells v. State, 687 P.2d 346 (Alaska App.1984). . 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). . See supra note 3.

8361085

Curtis McDONALD, Appellant, v. Yvonne TRIHUB, Appellee

McDonald v. Trihub

2007-12-28

No. S-12317

416

430

173 P.3d 416

173

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:17:27.941175+00:00

CAP

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

Curtis McDONALD, Appellant, v. Yvonne TRIHUB, Appellee.

Curtis McDONALD, Appellant, v. Yvonne TRIHUB, Appellee. No. S-12317. Supreme Court of Alaska. Dec. 28, 2007. Deborah Burlinski, Burlinski Law Office, LLC, Anchorage, for Appellant. Rhonda F. Butterfield, Anchorage, for Ap-pellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.

7580

47342

OPINION CARPENETI Justice. I. INTRODUCTION This appeal arises out of two overlapping child support proceedings-the first culminating in an administrative decision and the second in a superior court order-that established different levels of child support for a father. The father appeals the superior court's decision, contending that the court was collaterally estopped from rendering findings different from those established in the administrative decision and that the court's order was an impermissible retroactive modification of child support. He also argues that the court erred in concluding that he did not have shared physical custody of his son, in establishing his child support obligation, in refusing to reduce his obligation on account of his disability, and in awarding attorney's fees. Because the father affirmatively waived his right to assert collateral estoppel and because the parties chose to allow the court to decide each year of the father's support obligation, there was no valid support order in effect at the time of the court's order and it was therefore not an impermissible retroactive modification of support. Because the court's decisions establishing the father's income and refusing to reduce his obligation on account of his disability are supported by the record, we affirm the superior court's decision in all respects. Finally, because the father concedes that the divorce exception does not apply to the facts of this case, we affirm the court's award of attorney's fees under Civil Rule 82. II. FACTS AND PROCEEDINGS Curtis McDonald and Yvonne Trihub were involved in a relationship but never married. They had one child, Gideon, born in Anchorage in 1992. Six months after Gideon was born, the parties separated. Yvonne and Gideon lived in Oregon during the mid 1990's. During that period and until August or September 1999, Curtis paid Yvonne some level of child support, ranging from $275 to $475 a month. The parties did not seek or obtain a support or custody order. In 1999 Yvonne and Gideon returned to Alaska and resided with Curtis until May 2000. Central to this appeal are two parallel proceedings regarding Curtis's child support obligation. The first began in October 2008, when Yvonne initially applied to the Child Support Services Division (CSSD) for child support services. After CSSD issued initial support recommendations, Curtis requested administrative review which resulted in CSSD issuing an amended support order in August 2004. The order established Curtis's ongoing support obligation at $932 per month and found him to be $10,252 in arrears for the period October 2008 through August 2004. Curtis appealed the amended order and requested an administrative hearing, asserting that CSSD had overestimated his income and failed to calculate his support obligation based on shared custody. An administrative hearing was conducted in November 2004. In December 2004 CSSD issued a "post-hearing brief," finding that Curtis had custody of Gideon for forty percent of the time in 2008 and thirty-six percent of the time in 2004. The Office of Administrative Hearings (OAH) subsequently sought additional evidence regarding Yvonne's income and directed CSSD to revise its initial calculations. In January 2005, before completion of the administrative proceedings, Curtis filed a complaint for joint custody in the superior court. The complaint stated that there was an open CSSD action and that "[aldministra-tive appeals are pending in that case." Yvonne counter-claimed and asked the court to reduce the amount of child support arrears to judgment. In November 2005 the parties entered a child eustody settlement agreement. They agreed to share joint legal custody, while primary physical custody was awarded to Yvonne. The custody settlement was approved by the court, though the support issues remained unresolved. On April 7, 2006, OAH Administrative Law Judge Kay Howard issued a decision and order (the administrative decision) in the CSSD proceedings. The administrative decision adopted CSSD's revised calculations of Curtis's income and determined Curtis's support obligation based on a finding of shared custody. The administrative decision ultimately found Curtis liable for child support in the amount of "$208 per month from October 2008 through December 20083, and $221 per month, effective January 2004, and ongoing." On April 17, 2006, ten days after the administrative decision, Superior Court Judge Sen K. Tan conducted a hearing on child support. At the conclusion of the hearing, the court issued verbal findings, concluding that ¥vonne had primary physical custody of Gideon during the years in question and imputing income to Curtis for the purpose of calculating his support obligation. Judge Tan denied Curtis's subsequent motion for reconsideration. On May 8, 2006, Judge Tan issued a final order concluding that Yvonne had primary physical custody of Gideon during 2000-2002, 2004, and 2005, calculating Curtis's support obligations from 2000 forward using a wage of twenty dollars per hour, and setting Curtis's support obligation for May 2000 forward. Curtis's monthly support obligation was determined to be approximately $560. The court subsequently awarded Yvonne $1,404 in attorney's fees. Curtis appeals the superior court decision and claims the court erred by (1) failing to apply collateral estoppel to the administrative decision; (2) failing to properly apply Alaska statutes regarding CSSD's "separate authority"; (8) modifying his support obligation retroactively; (4) imputing income retroactively; (5) finding Yvonne exercised primary physical custody of Gideon from 2000 through 2002 and 2004; (6) establishing his ongoing support obligation incorrectly and failing to reduce his current obligation on account of his disability; and (7) awarding Yvonne attorney's fees. III. STANDARD OF REVIEW We will reverse a child support award only if the trial court abused its discretion or applied an incorrect legal standard. The question of whether the superior court followed the proper method of calculating child support is a question of law that we review de novo. The superior court's factual findings regarding a party's income for calculating child support will be overturned only if clearly erroneous. While we review an award of attorney's fees for abuse of discretion, the determination of which statute or rule applies to an award of attorney's fees is a question of law that we review de novo. IV. DISCUSSION A. The Superior Court Correctly Declined To Apply Collateral Estoppel to the Administrative Decision. Curtis's first argument is that the superior court erred as a matter of law in failing to apply the doctrine of collateral es-toppel to the administrative decision. Yvonne alleges that Curtis waived this argument by failing to include it in his points on appeal. While the issue is not listed in his points on appeal, we have previously recognized that where a party raised the claim before the trial court, fully briefs the issue on appeal, and the issue can be "effectively address[ed] . without the need to review untranseribed portions of the electronic ree-ord," we may still undertake review. Here, Curtis's fourth point on appeal alleged that the court erred by "failing to review and properly consider the findings of the Administrative Hearing Officer . whol made findings on the same issues involved in this case." This provided adequate notice of Curtis's first argument. Moreover, the issue was addressed by the superior court below and the argument is listed under a separate heading and discussed in Curtis's appellate brief. Under these circumstances, we may consider this issue. Collateral estoppel "bars relitigation, even in an action on a different claim, of all issues of facts or law that were actually litigated and necessarily decided in a prior proceeding." In order for collateral estop-pel to apply, the claim must be asserted against a party or one in privity with a party to the first action. Where a party fails to assert the claim of collateral estoppel against the opposing party, it may be considered waived. In this case, the superior court raised the issue of whether collateral estoppel applied. Judge Tan asked counsel for both parties what years of custody and child support were at issue; the parties specifically requested the court to issue a determination for every year. In so doing, they plainly waived their right to later assert collateral estoppel. At the beginning of the court hearing Judge Tan engaged counsel in a colloquy on the legal effect of the administrative decision, which did not address the period of time from May 2000 to 2002, but which had adopted the CSSD findings for 2008 forward. Curtis's counsel, Deborah Burlinski, initially requested that the court "follow" the findings of the administrative decision. Judge Tan then asked Yvonne's attorney, Rhonda But-terfield, whether the court should decide support calculations for all years, including the time period covered in the administrative decision: "[Mly question to Ms. Butterfield is, look, do I get to redo that or isn't that something that if you disagree with you should have taken an administrative appeal?" Ms. Butterfield clarified that the time for filing an appeal of the administrative decision had not yet run and stated that she did not want "inconsistent decisions." Judge Tan then summarized his concerns on the issue: [Oln the one hand, I want to give CSSD deference, but on the other hand I want to make sure that, you know, I'm doing something so that we don't come up with an inconsistent decision. What I want to be clear up front is this . I am willing to go ahead and make a decision for all the years. However, if either party wants to take the position, Judge, we don't like your decision, okay, then we're going to argue collateral estoppel and take an administrative appeal and probably get another judge, then I'm going to say, I'm not going to waste my time doing '08, '04 because then basically we could essentially have what I would call a mess and I'd rather not do that and just say, you know, they're two different tracks. You can either pick the time track or for '083, '04, you can select another track and I'm willing to let it move on through the appellate process including an administrative appeal and so we don't have inconsistent decisions. That's what I want to avoid. So I would like to clarify with counsel what your position is. Do we want to do '03, '04 or should I just do . 2000, 2001, 2002, and 2005 onwards? Butterfield: Your Honor, we think you should do all of it. Court: Okay. So essentially I just want to make clear.... Is your position regardless of what I do it's b[ilnding?" Butterfield: Correct. Court: The parties will not seek-how can I say--an administrative appeal. Butterfield: Correct. Court: Ms. Burlinski, are you in agreement with that? Burlinski: Yes, Your Honor. Thus, the parties agreed to allow the court to decide each year at issue, including those covered in the administrative decision. The parties' statements, when viewed in light of Judge Tan's plainly expressed concerns, make clear that both parties intended to allow the superior court to independently determine each year of child support, including the time period covered in the administrative decision. Because Curtis affirmatively and explicitly agreed to proceeding in the superior court, instead of maintaining that collateral estoppel applied to the obligation amounts established in the administrative decision, he is precluded from asserting collateral estoppel now. B. Curtis Waived His Statutory Argument. Curtis next claims that the court violated Alaska statutes by not giving proper legal effect to the administrative decision. He argues that CSSD is a separate "tribunal" under AS 25.25.102 and AS 25.25.205(a), and that absent an appeal of the administrative decision, the court must give effect to the "legislature's intent" recognizing their jurisdiction. For the reasons discussed above, we again conclude that Curtis affirmatively and explicitly waived this argument when he appeared and asked the superior court to proceed to decide support obligations for all years. There is a second basis upon which to conclude that Curtis has waived this point: It is not sufficiently addressed to merit appellate review. We have previously held that a claim is waived where an appellant makes only vague allegations to the trial court, fails to raise it in his points on appeal, and gives cursory treatment to the issue on appeal. Here, Curtis never made this argument to the trial court; moreover, his appellate argument on this point is largely conclusory and devoid of any relevant citations. In addition, only Curtis's fourth point on appeal, which alleged that Judge Tan "failled] to review and properly consider the findings of the Administrative Hearing Officer on the same issues involved in this case" could be considered to have put Yvonne on notice of this argument. But point four is sweeping and non-specific, and nowhere does it suggest a statutory challenge to the trial court's decision. Finally, unlike the collateral estoppel issue, which was discussed before the superi- or court, nowhere below did Curtis allege that either statutory section was dispositive of the court's treatment of the administrative decision. We therefore conclude that this argument is waived. C. - The Superior Court's Order Was Not an Impermissible Retroactive Modification of Child Support. Curtis next contends that by establishing child support amounts that differed from those established in the administrative decision, the superior court engaged in an impermissible retroactive modification of support. Alaska Civil Rule 90.3(h)(2) prohibits the retroactive modification of child support. The rule precludes both decreases and increases of a child support award that would be effective before the date that a motion for modification is served on the opposing par ty. However, where no child support order is in effect for the relevant period, the use of Rule 90.3 to establish child support does not violate the prohibition on retroactive modification. Under the circumstances present here, we conclude that Rule 90.3(h)(2)'s ban on retroactive modification is inapplicable because there was no valid support order in effect at the time of the superior court order. As discussed above, neither party had exercised its right to appeal the administrative decision, and both parties requested that Judge Tan issue a support order encompassing each and every year of the parties' support obligations. The decision to proceed in the superior court on all the years thereby prevented the administrative decision from taking effect. Because the administrative decision was only ten days old and the time for filing an administrative appeal had not yet lapsed, and because both parties agreed that the court could go forward and decide support obligations for all years, we conclude that no valid support order was in effect at the time the superior court acted. The superior court's order was therefore the effective sup-, port order in this case and was not an impermissible retroactive modification of child support. D. The Court Did Not Err in Concluding that Yvonne Had Primary Physical Custody of Gideon in 2000-2002 and in 2004. [12] Curtis next challenges the court's determination that Yvonne had primary physical custody of Gideon from May 2000 through 2002 and in 2004. He asserts that the court erroneously relied on the testimony of Gideon's babysitter and failed to give sufficient weight to 2003 and 2004 calendars that he contends reflect the amount of time he spent with Gideon. We. conclude that Judge Tan's determination was adequately supported by the evidence. Under Alaska Civil Rule 90.3(b), support obligations of parents who share physical custody of their children are established by calculating the amount each parent would owe assuming that the other parent had primary physical custody and' multiplying that amount by the percentage of time the other parent has primary physical custody. The difference, augmented by fifty percent, is the amount of support owed. Civil Rule 90.3 provides that a parent has "shared physical custody" for the purposes of calculating child support if a child resides with that parent for at least thirty'percent of the year, or 110 nights. Yvonne testified that beginning in May 2000, she had primary physical custody of Gideon and that Curtis had visitation for approximately two two-week periods in the summer and every other weekend throughout the school years. She testified that while the parties attempted a shared custody arrangement in the spring of 2001, Curtis routinely failed to take Gideon when he was supposed to, that "it became to where it was mostly he was with me," and that the arrangement dissolved by November 2001. She also stated that while Curtis was supposed to have visitation with Gideon every other weekend, Curtis would routinely pick Gideon up Saturday morning rather than Friday night. As Judge Tan noted, Curtis testified to a similar schedule. Curtis stated that for "most of 2000" Gideon and his mother lived with him in his house, but that after she moved out, he had Gideon for "weeks at a time," or for roughly forty-five out of sixty days of summer 2000. Curtis admitted that beginning in the fall of 2000 he saw Gideon "probably every other weekend" and would pick him up on "Friday night or Saturday morning" and return Gideon to school on Monday morning. Curtis also testified that he and Yvonne followed this same pattern for 2001 and 2002, with Curtis having custody approximately every other weekend and forty-five out of sixty days in the summer. While select portions of Curtis's testimony and that from other witnesses suggested he had custody of Gideon more frequently, Judge Tan could have reasonably afforded more weight to the similarity of Yvonne and Curtis's recollections. Moreover, the testimony of the other witnesses differed substantially from that which Curtis and Yvonne recalled: Dylan Bales, a family friend, testified that Gideon was at Curtis's full-time in 2000-2002. But on cross-examination it became apparent that Bales was more likely referring to the time period 2002-2008, which more closely tracks the time frame the parties stipulated that they shared custody. Curtis's wife, Sandy McDonald, testified that Gideon lived with Curtis nearly full-time and year-round from May 2000 until September 2002 and only "occasionally" visited with his mother. Judge Tan aptly noted that this testimony presented a "totally different picture" than that Curtis offered. To the extent that there was a close question, the court found the testimony of Yvonne's babysitter - Miriam - Velasquez ("Tia") the "tie-breaker." Yvonne testified that Tia became Gideon's babysitter in 2000. Yvonne stated that beginning in 2001 and for the next four years she worked nights at Carpentier's Lounge, that Tia babysat for Gideon, and that Yvonne picked (Gideon up from Tia's home after finishing work. When the court called Tia as a witness, she testified that she began watching Gideon "many years ago . maybe four years,. Five ." and that she had been babysitting him for a "long time." She testified that Yvonne worked nights and that Gideon would sleep at her house until Yvonne picked him up in the middle of the night, testimony which squarely supports Yvonne's recollection of the custody arrangement during this period. Curtis next claims that a 2004 calendar maintained by Sandy McDonald, which covered only January through October 2004, revealed that he had sufficient overnights with Gideon to qualify for shared custody of Gideon that year. He relies heavily on "inconsistencies" in Yvonne's testimony at the administrative hearing which he claims supports the accuracy of the 2004 calendar. This reliance is misplaced, because the administrative transcript is not included in our appellate record and because Curtis's questioning of Yvonne on the subject at the April 2006 court hearing indicates only that she stipulated that the parties shared custody in 2008. Moreover, while Curtis testified that his wife's 2004 calendar was accurate, his testimony on cross-examination revealed that he had spent only ninety-two nights with Gideon through October 2004 (the last month the calendar was maintained). Yvonne testified that Curtis had Gideon for approximately nine additional nights between November and December 2004 for a total of only 101 nights in 2004. Curtis asserts that the calendar reflects Gideon spent more time with him than his testimony indicated, particularly over the Fourth of July holiday. But this claim is not clearly established upon a review of the calendar and is directly contradicted by Yvonne's testimony that she had custody of Gideon over that same weekend. In light of Curtis's testimony corroborating Yvonne's recollection of events, the court's unique position to judge the credibility of the witnesses, and the court's finding that Yvonne had a "good recollection of where Gideon was most of the time during these years," we conclude that the superior court did not err in finding that Yvonne had primary physical custody. E. The Court Did Not Err in Determining Curtis's Income for the Purpose of Establishing His Retrospective Support Obligation. Curtis next asserts that the superior court erred in establishing his retrospective support obligation based upon a wage of twenty dollars per hour for a "skilled mechanic." He claims that the court used this figure as imputed income but made no finding that he was underemployed. Contrary to Curtis's contention, the court's decision to approximate income was not based on a finding that Curtis was underemployed, but rather was an effort to estimate Curtis's income accurately in light of the confusing and non-credible nature of the evidence Curtis had presented. We conclude that the decision to do so was reasonable. A trial court must apply the methodology of Rule 90.3 to establish the amount due to a custodial parent for child support during periods not covered by a The court's calculation of support order. income for the purposes of establishing the amount of support owed should be a "reasonable assessment" of the obligor's earning capacity. Curtis contends that in establishing the retrospective award his actual income should have been used, and that the court's use of the hourly wage was error. Our recent case law provides that actual income is an acceptable basis for establishing past support "accruing over a relatively short duration," but here the superior court was confronted with establishing Curtis's support obligations over a six-year period. Moreover, we have recognized that a trial court may estimate income for the purpose of calculating support where no other accurate or credible information is available. In this case, the court attempted to approximate Curtis's income amid evidence that was at best contradictory and inchoate, and at worst misleading. Judge Tan agreed with the administrative decision in concluding that Curtis's tax returns were not consistent with his bank records. Judge Tan found that Curtis's cash flow likely underestimated his income, that Curtis "was not careful about keeping business records," and that the various income numbers presented were "guesstimates at best." The court also recognized that while Curtis was doing "favors" for friends by providing labor for excavations in the form of a bartering system, he provided no written record of these transactions. Judge Tan ultimately concluded that the court did not have a "complete picture of Mr. McDonald's actual income." The court's rejection of Curtis's proffered income evidence is perhaps best justified because the evidence varied widely and three different fact-finders have found it confounding, unreliable, or both. At the April 2006 court hearing, Curtis's counsel contended that Curtis's income from "©2000 until present" was in the "$25,000 range." But Curtis's tax returns reflected a much lower figure-his 1999 adjusted gross income was $9,612 and his 2000 income was $8,307. At no time does Curtis explain the discrepancy between these figures. CSSD recognized the discrepancy and rejected Curtis's 2008 tax return, which reflected a business income of $11,186, and instead initially calculated Cur tis's 2008 obligation based on the total amount of deposits ($72,897) made to his business checking account. Following the administrative hearing, CSSD rejected the business-deposit methodology and instead calculated Curtis's obligations on the total amount of personal checks Curtis withdrew from his business for personal expenses-$25,780.17 in 2003 and $24,101.18 in 2004. The administrative decision subsequently concluded that this latter method was "atypical, but it is the best evidence of [Curtis]'s income for child support purposes." The decision also noted that "the tax return . does not accurately reflect [Curtis]'s income and expenses" and was "not consistent with his other financial documents and testimony"; it also recognized that there were many "unanswered questions in [Curtis]'s financial documents." In considering how to determine most accurately Curtis's support obligation, Judge Tan noted that it would be nearly impossible to "go back and recreate" Curtis's income from the information presented. The court chose to approximate Curtis's income using a wage of twenty dollars per hour, a decision that was also adequately supported by the evidence. Testimony established that Curtis owned and operated a business buying and selling used motor homes, that he worked as an automobile mechanic repairing and upgrading the motor homes for resale, and that as recently as 2004 he held a business license for "auto repair and sales." Evidence established that the mean wage for automotive service technicians and mechanics in Anchorage was $20.51 per hour. Curtis also maintained a commercial driver's license and has performed some excavation work, including putting water lines in for a housing development and laying foundations in the summer of 2004. Evidence established that the mean wage for "machine operators, excavating" was $19.82 per hour. In light of this evidence, Judge Tan's use of a wage of twenty dollars per hour as an estimate of Curtis's income was reasonable. Curtis suggests Judge Tan should have invited him to submit additional information to "clear up any discrepancies." But we have repeatedly recognized that parties who fail to present sufficient evidence to the court cannot later object on the basis of inadequate evidence. Indeed, Curtis's own testimony revealed his disinclination to assist the court in obtaining a more accurate picture of his finances. While being questioned about his bank accounts Curtis responded, "[slome-thing that's-you know, that's bothering me right now is I've already gone through all this in front of a judge under oath. I've spent two days and this has all been done. So are we going to go do two more days of this?" Curtis's testimony also indicated that he had little memory of or willingness to discuss his prior cash flow, income, and bookkeeping practices. Curtis was asked about the large discrepancies between his business bank statements and his tax returns. When asked which were accurate, the tax returns or the bank statements, Curtis asserted that the number on his tax return was the correct one, but he could not explain why the figures differed so substantially. He repeatedly responded "I don't know" and added "you'd have to ask the accountant." He was unable to testify whether there was anything erroneous about his bank account statements, why his bank statements and business account statements regularly differed from the information provided on his tax returns, and if or how much he was paid for an excavation job he performed in 2004. He also stated that he kept his own books for his business, but that he "didn't really keep any records," he "didn't see any reason why" he needed to Curtis's testimony also indicated that he had little memory of or willingness to discuss his prior cash flow, income, and bookkeeping practices. Curtis was asked about the large discrepancies between his business bank statements and his tax returns. When asked which were accurate, the tax returns or the bank statements, Curtis asserted that the number on his tax return was the correct one, but he could not explain why the figures differed so substantially. He repeatedly responded "I don't know" and added "you'd have to ask the accountant." He was unable to testify whether there was anything erroneous about his bank account statements, why his bank statements and business account statements regularly differed from the information provided on his tax returns, and if or how much he was paid for an excavation job he performed in 2004. He also stated that he kept his own books for his business, but that he "didn't really keep any records," he "didn't see any reason why" he needed to maintain accurate bookkeeping, and that the accountant who did his taxes was a friend. Curtis's current wife, Sandy McDonald, also testified that her husband "wasn't the best bookkeeper." We also reject Curtis's contention that the court should have first determined his income for the year 2000 and ordered that amount to be used for each of his past years' arrearages. - He relies on Duffus v. Duffus, a case where we found that in looking back to calculate an obligor's income for the previous ten years, and "considering the inherent difficulties of accurately reconstructing parental income over this lengthy period," an annual recalculation of support was impractical. Instead, we held that "onee [the obligor's] first year support obligation has been aceu-rately calculated based on his actual adjusted income, the superior court may maintain that amount of support unchanged for subsequent years." While Judge Tan relied on current average wage rates in approximating Curtis's past income, the use of this figure was plainly reasonable for the purpose of calculating the first year of Curtis's support obligation. Curtis testified that when he performed excavation work nearly fifteen years ago he was paid twenty dollars an hour, a figure equal to the figure the court used. Moreover, in light of the unreliable evidence Curtis presented, it would have been extraordinarily difficult, if not practically impossible, for the court to recreate the information necessary to obtain a more precise determination of Curtis's past income. We conclude that the court's determination on Curtis's income was not error. F. The Court Did Not Err in Establishing Curtis's Support Obligation and in Refusing To Reduce His 2005-2006 Support Obligation. Curtis claims that the court erred in refusing to reduce his 2005-2006 support obligation because of disability. He contends that a knee injury rendered him incapable of performing anything but sedentary work, that there was no evidence in the record that he worked in 2005, and that his prospective support obligation should therefore have been varied for "good cause." For the reasons set forth below, we reject both Curtis's belated and largely conclusory arguments regarding his lack of income in 2005 as well as his argument that the court should have reduced his ongoing support obligation on account of disability. As already discussed, in determining the appropriate level of child support due under Civil Rule 90.3, the court generally bases its calculations on the annual adjusted income of the obligor parent. In determining a party's earning capacity for purposes of the rule, the trial court has the discretion to choose the best indicator of future earning capacity based on the evidence before it. The ultimate goal of a support determination "is to arrive at an income figure reflective of economic reality." Rule 90.3(c) provides that the court may vary a support award for good cause; however we "will not relieve a noncustodial parent from his child support obligations absent an affirmative showing that the obligor parent cannot meet this obligation." Judge Tan refused to reduce Curtis's support obligation on account of his alleged disability based on his finding that: apparently [Curtis] continues to go on[ ] and work and do a lot of jobs, and although there may be an operation in the offing, the doctor's notes suggest that, you know, he really shouldn't be working, but he still continues to do so-I'm going to have to impute an income to you. After Judge Tan issued his findings, Curtis's counsel argued that Curtis's business had been closed for a year but admitted that Curtis may have failed to adduce evidence to that effect. Curtis's evidence of his alleged disability consisted largely of his own testimony. He testified that he "blew . out" his ACL ten years before trial and had been receiving injections into his knee to help him get around, that he would need a knee replacement in the future, and that he often wore a knee brace. He testified that he could no longer work on heavy equipment and could only do light-duty work "up until a year ago." He testified that shortly after Christmas 2004 he had a snow machine accident and "blew [his] knee apart," that from late December 2004 on he could perform only limited work, and that his doctor ordered that he be "totally off work" from October 2006 (when Curtis suggested he might undergo knee surgery) until January 1, 2007. However, contrary evidence indicates that Curtis's knee problems did not preclude him from working. He admitted to being able to maintain work over the last fourteen years despite his knee problems and testified that he continued to go snow machining with his son and stay "pretty active." His wife testified that Curtis was still able to go four-wheeling. And while Curtis testified that he could not work on heavy equipment because his knee was so susceptible to injury, he later explained that when he worked at his shop he would "climb ladders and climb inside and get underneath [the motor homes and vehicles}." We have previously rejected a trial court's order holding in abeyance a party's support obligation based on its decision that the party could no longer work as a carpenter where there was "no testimony by a physician regarding the nature or extent of the [obli-gor's] injuries and disability." In this case Curtis presented scant evidence of the nature of his injury. Neither of the one-page forms he produced from the Anchorage Fracture & Orthopedic Clinic contained any formal diagnosis or specific comments on Curtis's injury. Curtis did not call a physician to testify nor did he offer any further medical documentation on the existence or extent of his injury. Moreover, Curtis's contention that his support obligation should be reduced because there was "no evidence" that he worked in 2005 reverses the burden of proof and is otherwise suspect. Curtis, who had worked continuously for years, never testified that he was unemployed in 2005 and in fact testified that he was then in the process of buying a home. In addition, at the time of the hearing in April 2006, Curtis testified that he was selling his shop, which would "be sold [by] this summer," suggesting that he may have continued to work. And Curtis's counsel contended that Curtis's average income had been about $25,000 "over the years from 2000 until present." Finally, to the extent that Curtis was not working, he made no showing of other job or training opportunities that he had been actively pursuing such that he might have been found to be reasonably underemployed. In sum, the evidence established that Curtis had worked at least up until 2004 and that he had historically been capable of working despite his knee injury. Given the lack of medical evidence on the nature and extent of Curtis's injury, the court could have reasonably determined that he was not disabled and selected a wage figure of twenty dollars per hour as a reasonable approximation of Curtis's earning capacity. While Civil Rule. 90.8(c)(1) permits a court to vary support calculations, it does so only "upon proof by clear and convincing evidence that manifest injustice would result" without a variance. Curtis has failed to offer sufficient evidence, through further evidence of his medical disability or of his personal financial straits, that such manifest injustice would result in his case. We therefore conclude that the superior court decision establishing Curtis's prospective support obligation was reasonable. G. The Award of Attorney's Fees Was Not an Abuse of Discretion. Curtis's final argument is that the court improperly awarded Yvonne attorney's fees. The court awarded Yvonne thirty percent of her attorney's fees pursuant to Civil Rule 82(b)(2) and AS 25.24.140(a)(1). While attorney's fees are customarily awarded to the prevailing party under Civil Rule 82, there is an established exception to the rule in divorce cases which bases fee awards on the relative economic situation and earning powers of the parties. "The divorce exception to Civil Rule 82 is based on a broad reading of AS 25.24.140(a)(1) [pertaining to an interim award of attorney's fees in divorce cases] ., and on the reality that there is usually no prevailing party in a divorce case. Curtis contends that Yvonne was not entitled to fees under Rule 82 or the divorce exception and that the court should have looked to AS 25.20.115, which provides for attorney's fee awards in custody and visitation matters, and should have considered the "relative resources of the parties" in determining whether to make an award. We need not address Curtis's statutory argument because he wholly failed to raise the issue of whether AS 25.20.115 applies to fee awards in a child support action until his appellate reply brief. We further conclude that, based upon Curtis's own concession that "[t]he facts in this case do not resemble a divorce," the divorce exception does not apply. In light of the inapplicability of the divorce exception, the court's award of fees pursuant to Civil Rule 82(b)(2) was not in error. v. CONCLUSION Because Curtis asked the superior court to decide each year of his child support obligation, he waived his right to assert collateral estoppel. He also precluded the administrative decision from taking effect and for that reason we hold that the superior court order was not an impermissible retroactive modification of child support. Because the superior court's determinations regarding Curtis's income and Yvonne's primary physical custody of Gideon were supported by the evidence, we AFFIRM the superior court's support award. Because the evidence also supports the court's determination that Curtis was not entitled to a reduction in support payments on account of his disability, we AFFIRM the decision of the superior court and the award of attorney's fees. BRYNER, Justice, not participating. . Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001). . Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001). . Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003). . Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998). . Valley Hosp. Ass'n v. Brauneis, 141 P.3d 726, 729 (Alaska 2006). . Koller, 71 P.3d at 808. . - Alderman v. Iditarod Props., Inc., 104 P.3d 136, 141 n. 17 (Alaska 2004); See Alaska R.App. P. 204(e). . See Donnybrook Bldg. Supply Co. v. Alaska Nat'l Bank of the North, 736 P.2d 1147, 1149 n. 6 (Alaska 1987) (noting that where issue raised before trial court and fully briefed by both parties, appellant's failure to include it in points on appeal did not preclude appellate review); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) (noting court may consider theory not expressly presented where "it is not dependent on any new or controverted facts" and where "it is closely related to . trial court theory and could have been gleaned from . pleadings"). . Wall v. Stinson, 983 P.2d 736, 740 (Alaska 1999) (internal quotations omitted). . Id. (internal citations omitted). . Cf. In re Pac. Marine Ins. Co. v. Harvest States Coop., 877 P.2d 264, 267 n. 1 (Alaska 1994) {considering whether party waived issue of collateral estoppel by raising it for the first time on appeal). See also 47 AmJur2n Judgments § 637 (2007) ('The failure to plead or raise in a timely manner matters calling for the application of the doctrines of res judicata and collateral estoppel generally is regarded as a waiver."). . See Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (finding waiver, defined as "intentional relinquishment of a known right," where appellant failed to protest actions that later formed basis of appellant's lawsuit) (internal citations omitted). . AS 25.25.102 provides: "The superior court and the child support services agency are the tribunals of this state." . AS 25.25.205(a) provides: "A tribunal of this state issuing a child support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order...." . It is unclear why neither party in this case sought to abate the superior court action under AS 25.27.135, which provides: "If the same causes of action concerning a duty of child support are pending concurrently in court and before the agency, the second action filed may be abated upon the motion of a party or the agen-a cy. . See Conkey v. State, Dep't of Admin., Div. of Motor Vehicles, 113 P.3d 1235, 1237 n. 6 (Alaska 2005). . Rule 90.3(h)(2) provides: "Child support ar-rearage may not be modified retroactively.... A modification which is effective on or after the date that a motion for modification . is served on the opposing party is not considered a retroactive modification." . Yerrington v. Yerrington, 933 P.2d 555, 558 (Alaska 1997). . Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001). . See Kilpper v. State, Dep't of Revenue, Child Support Enforcement Div., 983 P.2d 729, 734, n. 17 (Alaska 1999) (noting that altering child support arrearage for period where no child support order in effect not impermissible retroactive modification). . AS 25.27.220, which provides for appellate review of CSSD decisions, allows for judicial inquiry into whether there was a prejudicial abuse of discretion, and also provides that the superior court may exercise its independent judgment on the evidence, augment the agency record in whole or in part, or hold a hearing de novo. . See State, Dep't of Revenue., Child Support Enforcement Div. v. Button, 7 P.3d 74, 76 (Alaska 2000) (party's appeal of agency's informal conference decision prevented support order from becoming final order for purposes of ban on retroactive modification). . The parties shared physical custody of Gideon in 2003. . Alaska R. Civ. P. 90.3(f) and cmt. V(A). . Parker v. N. Mixing Co., 756 P.2d 881, 892 (Alaska 1988) ("It is the function of the trial court, not this court, to judge witnesses' credibility and to weigh conflicting evidence."). . See Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996). . Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). . Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001) (citing Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997) (requiring retrospective support be based on actual income)). . Duffus v. Duffus, 72 P.3d 313, 321 (Alaska 2003). . Benson v. Benson, 977 P.2d 88, 91 (Alaska 1999) (affirming order imputing income based on estimates of party's bank records and rejecting party's income information where tax returns not credible, testimony non-responsive and contradictory, and party failed to keep accurate income records). . . The administrative hearing officer noted that Curtis's tax return was inconsistent with his other financial documents and his testimony and concluded that it [did] not accurately reflect his income and expenses." . Cf. Koller v. Reft, 71 P.3d, 800, 805 (Alaska 2003) (requiring court to make specific findings to support determination of adjusted income under Rule 90.3). . See Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992) (stating that trial court has discretion to choose method best approximating obli-gor's future earning capacity on basis of most complete evidence before it). . See Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992) ("It is the duty of the parties, not the court, to ensure that all necessary evidence is presented at trial."); Koller, 71 P.3d at 804 n. 7 (noting superior court has discretion to use evidence submitted to it). . 72 P.3d 313 (Alaska 2003). . Id. at 321. . Id. . Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska 1991). . Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992). . Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992). . Kowalski, 806 P.2d at 1371. . Houger v. Houger, 449 P.2d 766, 769-70 (Alaska 1969). . See Dunn v. Dunn, 952 P.2d 268, 271 (Alaska 1998) (upholding court's determination to impute income despite party's testimony of shoulder pain where evidence established party continued to build houses). . See Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999) (holding court not obligated to credit speculative testimony that party's income likely to decline). . Coats v. Finn, TIQ9 P.2d 775, 777 (Alaska 1989) (holding that burden of persuasion for departure from Civil Rule 90.3(c) is on objecting party). . Curtis remains free to petition the superior court for modification "if he can show that he is unable to earn the income level determined by the superior court and, thus, cannot meet his support obligation." Renfro v. Renfro, 848 P.2d 830, 833 (Alaska 1993). . Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003); but see Sanders v. Barth, 12 P.3d 766, 768-69 (Alaska 2000) (refusing to apply divorce exception for support issue litigated more than ten years after end of relationship). . Koller, 71 P.3d at 808 (quoting BJ. v. J.D., 950 P.2d 113, 118 (Alaska 1997)). AS 25.24.140(a)(1) provides: "During the pendency of [a divorce] action, a spouse may . be awarded expenses, including . attorney fees and costs...." . AS 25.20.115 provides: In an action to modify, vacate, or enforce that part of an order providing for custody of a child or visitation with a child, the court may, upon request of a party, award attorney's fees and costs of the action. In awarding attorney fees and costs under this section, the court shall consider the relative financial resources of the parties and whether the parties have acted in good faith. . Childs v. Tulin, 799 P.2d 1338, 1341 n. 5 (Alaska 1990) (issue raised for first time in reply brief deemed waived). . Rule 82(b)(2) states in relevant part: "In cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a case which goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which were necessarily incurred..."

10411324

John M. BROWER, Appellant, v. STATE of Alaska, Appellee

Brower v. State

1986-11-28

No. A-716

645

648

728 P.2d 645

728

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:24:54.184555+00:00

CAP

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

John M. BROWER, Appellant, v. STATE of Alaska, Appellee.

John M. BROWER, Appellant, v. STATE of Alaska, Appellee. No. A-716. Court of Appeals of Alaska. Nov. 28, 1986. Christine Schleuss, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2121

12974

OPINION COATS, Judge. John M. Brower was convicted, following a court trial, of harassment, AS 11.61.-120(a)(5), a class B misdemeanor, attempted second-degree sexual assault, AS 11.31.-100(a) and 11.41.420(a), a class C felony, and second-degree sexual assault, AS 11.-41.420(a)(1), a class B felony. Brower appeals his sexual assault and attempted sexual assault convictions. We find that there was insufficient evidence to support those convictions and reverse. John Brower was charged with several counts involving sexual misconduct. The convictions from which Brower appeals involved J.L. J.L. testified to the grand jury that he was sixteen years old at the time of the incidents. J.L. lived with Brower in Barrow. J.L. testified before the grand jury about several incidents involving Brower. J.L. testified about an incident which occurred when he was watching TV in the living room of Brower's home. J.L. stated that Brower entered the room, approached J.L., and began to rub J.L. on the back and legs. J.L. allegedly told Brower to stop, but Brower continued, unbuckling J.L.'s belt. J.L. became scared and began wrestling with Brower. Brower then purportedly threw J.L. on the floor. J.L. picked up a metal coffee cup and threatened Brower, who then discontinued his advances. J.L. stated that he received a bruise from the fall. J.L. moved out of Brower's house for three days, then returned. This incident gave rise to Count IX, charging attempted first-degree sexual assault, for which the Judge convicted Brower of the lesser included offense of attempted second-degree sexual assault. J.L. also testified that Brower approached J.L. one night as J.L. was going to sleep. Brower allegedly began to rub J.L.'s penis. No further testimony was presented. This incident gave rise to Count XI (second-degree sexual assault). At trial, J.L. testified regarding another incident, describing Brower's actions: "He tried to hump on me, so I told him no." However, J.L. totally recanted his descriptions of the incidents which had given rise to the sexual assault charges. The state successfully impeached J.L. with his grand jury testimony. Following the close of the state's case, Brower moved for a dismissal of all counts on the grounds of insufficient evidence. Judge Jeffery denied Brower's motion. Brower took the stand in his own defense. He testified that he gave J.L. back-rubs without any sexual intent. Brower denied that he had ever used any physical force or threats to encourage J.L.'s unwilling participation in sexual acts. Brower testified that he had only physically struggled with J.L. once, that being an unrelated matter. In addition, Brower denied all sexual contact with J.L. during the period of the charged offenses. In evaluating an appeal based upon sufficiency of the evidence, the reviewing court reviews the evidence in the light most favorable to the state. Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Ross v. State, 586 P.2d 616, 618 (Alaska 1978). The standard is whether the finding of guilt is supported by substantial evidence. The evidence must support a conclusion by a reasonable mind that there was no reasonable doubt about the defendant's guilt. Id. The state concedes that there was insufficient evidence to support a conviction on count XI, charging second-degree sexual assault. The evidence supporting count XI, J.L.'s grand jury testimony, was as follows: Q After that, just before Christmas of '83, this last Christmas, when you were again in your bedroom, did John do something funny again to you? A Um-hum. Q That time when you were in the bedroom, what were you doing? Watching TV or something? A I was going to sleep. Q Going to sleep. Did you have yourself undressed for bed, or what kind of clothes did you have on? A I just had my underwear and my T-shirt on. Q When you were about to go sleep, did John Brower come into the room? A Yeah. Q And what did he do when he came in? A He climbed on the bed and started rubbing me again. I told him to stop. I got up and (indiscernible). Q And when you say he was rubbing you again, was that in the same place, on the penis? A Um-hum. The state concedes that there is an insufficient showing of reckless disregard of J.L.'s non-consent to sustain the conviction. Although a confession of error is entitled to great weight, this court must conduct an independent review. Brown v. State, 693 P.2d 324, 328 (Alaska App.1984). Circumstances establishing an inference of reckless disregard of the victim's non-consent were found in Nicholson v. State, 656 P.2d 1209 (Alaska App.1982). In that case, the defendant was charged with sexual contact by coercion under former AS 11.41.420(a). The defendant had entered the victim's house uninvited, then undressed and entered the victim's bed. The victim had seen the defendant before, but there was no evidence to suggest any sort of relationship between them. We stated: The evidence supports a finding that Nicholson could reasonably forsee that [the victim] would be momentarily stunned by fear caused by Nicholson's unexpected and uninvited entry into her bed, in the early morning hours, enabling him to continue to caress her after she awoke. She testified she was temporarily in shock, and that she was afraid he would hurt her. Under these circumstances, we believe that a jury could find that [the victim's] momentary acquiescence in Nicholson's fondling her breast was "coerced by an implied threat of imminent physical injury ". Id. at 1213 (emphasis added). We believe that Nicholson is readily distinguishable. Given the close relationship between Brower and J.L., Brower's actions cannot be found to have been in reckless disregard of J.L.'s lack of consent. Therefore we conclude that there is insufficient evidence to support count XI. Brow-er's conviction on that charge is reversed. Brower was also convicted on Count IX of the lesser included offense of attempted second-degree sexual assault. This count stems from J.L.'s grand jury testimony in which he claimed to have used a coffee cup to thwart Brower's advances. J.L.'s grand jury testimony, if repeated at trial, would have been sufficient to sustain a conviction for attempted second-degree sexual assault. However, the problem lies in J.L.'s retracting this portion of his grand jury testimony at trial. There is no question that J.L.'s grand jury testimony could be considered as substantive evidence in support of the charges against Brower. Statements which are admitted as prior inconsistent statements under Alaska Rule of Evidence 801(d)(1)(A) may be used as substantive evidence. Beavers v. State, 492 P.2d 88, 94 (Alaska 1971); Van Hatten v. State, 666 P.2d 1047, 1050-51 (Alaska App.1983); commentary to A.R.E. 801(d) at 221. The question is whether J.L.'s essentially uncorroborated prior inconsistent statement to the grand jury is sufficient to convict Brower, given J.L.'s subsequent retraction of his grand jury testimony. Brower cites two cases in which courts have concluded that there was insufficient evidence to support a conviction when the only evidence of an element of the crime was a witness's prior inconsistent statement; U.S. v. Orrico, 599 F.2d 113 (6th Cir.1979), Moore v. State, 473 So.2d 686 (Fla.App.1984), aff'd, 485 So.2d 1279 (Fla.1986). In Orrico, the government tried to establish that the defendant gave instructions to deposit a check. The government's witness testified at trial that he could not remember who told him to deposit the check. The government impeached the witness with grand jury testimony in which the witness had said that the defendant gave him the instructions to deposit the check. 599 F.2d at 117. The court held that the impeachment evidence, while admissible as substantive evidence for purposes of conviction, was insufficient to establish that the defendant gave the witness instructions to deposit the check. In reaching this decision, the court stated: Rule 801(d)(1)(A) [admitting prior inconsistent statements as substantive evidence] will theoretically enable a party to make out a prima facie case even if his only evidence is a previous inconsistent statement of this type. Under the orthodox rule, "if the only evidence of some essential fact is such a previous statement, the party's case falls." It is doubtful, however that in any but the most unusual case, a prior inconsistent statement alone will suffice to support a conviction since it is unlikely that a reasonable juror could be convinced beyond a reasonable doubt by such evidence alone. Id. at 118 (quoting 4 Weinstein's Evidence 801-74). The Orrico court concluded that, although there might be some unusual cases, generally evidence of an uncorroborated prior inconsistent statement is not sufficient to establish evidence of a central element of the crime charged. Id. at 118-19. The state points out that both J.L. and Brower testified at trial and that the trial judge was able to observe their demeanor when testifying and thereby assess their credibility. The state also directs our attention to evidence that Brower sent J.L. a note prior to trial, telling J.L. that he loved him, and to other evidence indicating that Brower wanted J.L. to live with him. The state contends that from this evidence, the trial judge could conclude that Brower had influenced J.L. to change his testimony. We find the reasoning of US. v. Orrico persuasive in this case. Based upon our review of the record, we conclude that there was insufficient evidence to convict Brower of Count IX. J.L. retracted his grand jury testimony and that testimony was inadequately corroborated. J.L.'s grand jury testimony does not comprise sufficient evidence to sustain Brower's conviction. We therefore reverse his conviction on that charge. We order the trial court to enter a judgment of acquittal on Counts IX and XI. REVERSED and REMANDED. . AS 11.41.420(a)(1) provides: Sexual assault in the second degree, (a) An offender commits the crime of sexual assault in the second degree if the offender engages in (1) sexual contact with another person without consent of that person. . A.R.E. 801(d)(1)(A) provides in pertinent part: (d) Statements Which Are Not Hearsay. A statement is not hearsay if (1) Prior Statement by Witness. The declar-ant testifies at the trial or hearing and the statement is (A) inconsistent with his testimony. . In Moore v. State, 473 So.2d 686 (Fla.App.1984), aff'd, 485 So.2d 1279 (Fla.1986), two witnesses testified at the grand jury, identifying the defendant as the person who committed a murder. These witnesses recanted their testimony in a deposition. The witnesses were prosecuted for perjury and, in entering a plea to that charge, stated that their deposition testimony was truthful. 473 So.2d at 687. Moore was convicted of second-degree murder based on the grand jury testimony of the witnesses who had been convicted of perjury. The court, following the Orrico case, held the evidence was insufficient. 485 So.2d at 1280-82. See also State v. White Water, 634 P.2d 636 (Mont.1981) (conviction cannot rest solely on prior inconsistent statement where the accuracy of the prior statement is repudiated by witness at trial). State v. Allien, 366 So.2d 1308 (La.1978) (conviction cannot rest on prior inconsistent statement which was recanted at trial). It appears that these last two cases are distinguishable from the present case because the prior inconsistent statements were not made under oath. . Van Hatten v. State, 666 P.2d 1047 (Alaska App.1983) and Richards v. State, 616 P.2d 870 (Alaska 1980) are distinguishable. Richards did not challenge the sufficiency of the evidence on appeal. 616 P.2d at 871-72. In Van Hatten, the alleged victim stated at trial that she could not remember the attempted sexual assault on her with which her father was charged. The court in Van Hatten held that the daughter's grand jury testimony setting forth her earlier statement of the offense was admissible as a prior inconsistent statement and could be considered as substantive evidence. 666 P.2d at 1051. The court also held that the admission of the statement did not violate Van Hatten's constitutional right to confrontation. Id. at 1053. Sufficiency of the evidence to prove the charge against Van Hatten was not raised as an issue. However the discussion in the case makes it clear that the grand jury testimony was corroborated and that the witness testified at trial that the prior statement was made and that it was true. Id. at 1054. .Our disposition of these issues makes it unnecessary for us to decide the other issues Brower raises.

10444877

Norma E. GODFREY and Keith Godfrey, Appellants and Cross-Appellees, v. Shirley L. HEMENWAY and Robert B. Hemenway, Appellees and Cross-Appellants

Godfrey v. Hemenway

1980-09-26

Nos. 4382, 4448

3

9

617 P.2d 3

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:25:40.644665+00:00

CAP

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

Norma E. GODFREY and Keith Godfrey, Appellants and Cross-Appellees, v. Shirley L. HEMENWAY and Robert B. Hemenway, Appellees and Cross-Appellants.

Norma E. GODFREY and Keith Godfrey, Appellants and Cross-Appellees, v. Shirley L. HEMENWAY and Robert B. Hemenway, Appellees and Cross-Appellants. Nos. 4382, 4448. Supreme Court of Alaska. Sept. 26, 1980. Richard D. Pennington, Aglietti, Offret & Pennington, and Elizabeth I. Johnson, Boy-ko & Davis, Anchorage, for appellants and cross-appellees. Phillip J. Eide, Ely, Guess & Rudd, Anchorage, for appellees and cross-appellants. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

3049

18093

OPINION BURKE, Justice. On April 18, 1976, at mile 83 of the Glenn Highway, a car driven by Mrs. Shirley He-menway crossed the centerline and collided head-on with a car driven by Dr. Norma Godfrey. Dr. Godfrey suffered extensive injuries in the accident. In March of 1977, Dr. Godfrey and her husband, Keith, brought this action for damages against Mrs. Hemenway and her husband, Robert. The Godfreys asserted that the Hemen-ways were negligent in maintaining and operating their vehicle. The Hemenways responded that their vehicle's crossing of the centerline was the result of a collision with a moose, and not due to any negligence on their part. After a lengthy trial, the jury returned a verdict in favor of the Hemenways. Following the superior court's denial of their motions for a new trial and judgment notwithstanding the verdict, the Godfreys filed this appeal. As the prevailing parties, the Hemenways sought costs of $31,483.41 and attorney's fees of $95,000. The trial court awarded $12,000 in attorney's fees and affirmed the court clerk's award of $3,587.98 in costs. All costs relating to expert witnesses were denied. The Hemenways have taken a cross-appeal from the rulings. The circumstances surrounding the accident were vigorously disputed at trial. In addition to the testimony of both drivers and the state troopers who investigated the accident, each side offered the testimony of expert witnesses who presented conflicting explanations of the possible sequence of events leading up to the collision. On the day in question, Dr. Godfrey was traveling northbound from Anchorage to Glennallen, while Mrs. Hemenway and her five children were traveling southbound from Glennallen to Wasilla. The two cars collided head-on in the northbound lane after Mrs. Hemenway's vehicle swerved across the centerline. Mrs. Hemenway testified that her sudden crossing of the cen-terline was the result of a collision with a moose that had run onto the highway into her path. She first saw the moose run onto the highway from the right shoulder as she came out of a curve on a slight grade. She immediately applied her brakes but was unable to stop before hitting the moose. The impact caused her to swerve across the centerline into the northbound lane where she saw the headlights of the oncoming car for the first time. Despite her continued braking the cars collided. As a result of the short time span in which the accident occurred, Mrs. Hemen-way was unable to give a definite account of all of the details surrounding the two collisions. For example, she was certain that she hit the moose but she could not say with what part of her car. Nor could she recall attempting to avoid the moose or attempting to get back into her own lane, although the latter thought did enter her mind. Although she was unsure of her exact speed prior to braking, she was "pretty sure" she was not exceeding the speed limit. Her normal speed is about forty miles per hour, but on cross-examination she admitted that she could have been going as fast as fifty or fifty-five. Finally, she has no idea what happened to the moose after she hit it. Dr. Godfrey confirmed that a moose had run onto the road between the two vehicles. She did not, however, see anything indicating that the other car hit the moose. Rather, she testified that the moose ran in front of the other car, into her own lane, and off of the road. She began to slow down when she first saw movement on the road. Once she was sure that it was a moose, she began braking as hard as she could. After the moose had entered her lane she noticed that the other car was also crossing the center-line. She continued braking until the cars collided. Although she was unsure of her speed at the point of impact, she felt that she must have slowed down considerably from her initial speed of about fifty miles per hour. Trooper Nygren, one of the two Alaska State Troopers who investigated the accident, testified that Mrs. Hemenway's car left a straight skid mark for approximately 100 feet. The skid mark then curved to the left into the other lane and continued for another fifty-two feet to the point of impact. The Godfrey car was in a straight skid for approximately seventy feet prior to the point of impact. Mr. Williard Pennington, a witness for the Godfreys and an expert in brake maintenance, testified that, in his opinion, the brakes on the Hemenway vehicle were worn out and their stopping capability would be very poor. Mr. William Kieling, another witness for the Godfreys and an expert in accident re construction, testified that, in his opinion, Mrs. Hemenway's crossing of the centerline was probably the result of her combined braking and steering, not a collision with a moose. He felt that the brakes were so worn that, after the car had been in a locked two-wheel skid for approximately 100 feet, the left front brake released. Once the brake released, Mrs. Hemenway regained partial steering control which allowed her to steer the car into the other lane. He could not, however, rule out the possibility that the lane change was the result of a collision with a moose. He further testified that, based on his examination of the damaged vehicles, the combined speed of the vehicles at the point of impact was about thirty miles per hour. He was unable to estimate the individual speed of either of the cars either at the time of the collision or immediately prior to braking. He was, however, able to determine the distance in which the Hemenways' car should have stopped at various speeds. Assuming a locked four-wheel skid on a two per cent downgrade, an average coefficient of friction between the tires and the highway, dry pavement and initial speeds of 60, 55, 50, and 40 miles per hour the car should have stopped in approximately 177, 150, 123, and 79 feet, respectively. Dr. David Yoshida, a witness for the He-menways and an expert in accident reconstruction, testified that, in his opinion, there were three possible explanations for Mrs. Hemenway's veer to the left. First, she steered the car in that direction. Second, something happened to the brakes which had not happened before causing the vehicle to pull to the left. Third, an outside force acting on the vehicle caused it to veer to the left. In light of the evidence that the car was in a locked-wheel skid, he felt that the first possibility must be rejected; Mrs. Hemenway had no steering control. He also disregarded the second possibility on the grounds that, although the brakes were worn, they were still able to function properly. Indeed, the evidence of a locked brake skid suggests they were functioning properly. Moreover, once a brake has locked, there is no reason for it to unlock until the braking is stopped. The type of brake fade suggested by Mr. Kieling occurs when the brakes are ridden, not when they are locked. Dr. Yoshida did not, however, find any reason to disregard the third possibility. In his opinion, an impact with an outside force, such as a moose, was the only possible explanation that was consistent with the evidence. Dr. Yoshida also testified that the skid marks indicated that the Hemenway vehicle had been knocked backwards by the collision. This evidence led him to conclude that at the time of impact the Godfrey vehicle was going faster than the Hemen-way vehicle. He felt this was consistent with his conclusion that, assuming an initial speed of fifty-five miles per hour for both vehicles, the Hemenway vehicle would be stopped or nearly stopped at the time of impact while the Godfrey vehicle would be going thirty to forty miles per hour. Finally, Dr. Yoshida testified that at initial speeds of fifty-five and forty miles per hour the Hemenway vehicle should have skidded to a stop in approximately 150 and 78 feet, respectively. In this appeal the Godfreys allege numerous errors regarding the trial court's instructions to the jury and the denial of their motion for judgment notwithstanding the verdict or, in the alternative, a new trial. We turn first to the alleged error regarding the jury instructions. The God-freys' initial contention is that the trial court erred by allowing them only forty-five minutes in which to argue their requested jury instructions. This argument is without merit. The court fully complied with Civil Rule 51(a) and there is nothing in the record indicating that forty-five minutes was not a sufficient period in which to make their arguments. The Godfreys next maintain that they were prejudiced by a statement by the trial judge to the jury, which allegedly intimated that a verdict had to be returned either that night or during the next day. It is clear from the record that the trial judge was faced with a dilemma. The trial had taken much longer than had been anticipated and two of the jurors were concerned about catching planes that night. The trial judge discussed this problem with counsel for each side and ultimately decided to inform the jury that they would receive late that afternoon and would be allowed to deliberate until midnight that night and, if necessary, on the next day, which happened to be a Saturday. Specifically, the trial court addressed the jury as follows: THE COURT: Ladies and gentlemen, I want to thank you for your patience. The secretary is running off the-copying the instructions now. I've been mindful particularly of one juror's problem about getting off to school, but so that you'll know how we intend to run it, counsel will be arguing this ease to you in not too many minutes. They're going to have a few minutes to look at the instructions as changed. And I was going to suggest that right after the case is argued, and I instruct you, that we eat dinner. And I was going to further suggest that you deliberate until no longer than midnight tonight. That you terminate your discussions at midnight. Go home and get a good night's sleep, and then come back on Saturday at-which is tomorrow, and start your deliberations at 9:00 o'clock in the morning. Hopefully you'll be able to reach a verdict sometime thereafter, but the bailiff will be here to take care of your needs and take you to lunch if you're still in deliberations. And I'll have my secretary follow up on the one plane reservation. We do not believe that this statement was improper. It did not order the jury to return a verdict or establish a fixed time within which a verdict must be reached. Rather, the trial court merely informed the jury that they would be requested to deliberate that evening and, if necessary, into the weekend. In light of the circumstances confronting the trial court, the statement cannot be regarded as an abuse of discretion. Compare Greenburg v. Giant Food Shopping Center, Inc., 158 A.2d 476 (D.C.App.1960) and Zeitz v. Mara, 290 Mich. 161, 287 N.W. 418 (1939) with Pirch v. Firestone Tire and Rubber Co., 80 N.M. 323, 455 P.2d 189 (App.1969). The Godfreys further contend that the trial court erred in refusing to include as part of its instruction on negligence per se a statement of the relevant maximum speed limit as provided by 13 AAC 02.275. In response, the Hemenways argue that the evidence did not support such an instruction. Before a plaintiff is entitled to an instruction on negligence per se, he must demonstrate not only that the statute or regulation in question should be adopted as the applicable standard of care, but also that the record contains sufficient evidence from which a jury could reasonably infer that this statute or regulation was violated. Bachner v. Rich, 554 P.2d 430, 441 n.12 (Alaska 1976). As to the quantity of evidence required, the test is whether the facts and resulting inferences aré such that reasonable people, viewing the evidence in the light most favorable to the party seeking the instruction, could justifiably have different views on the question. If they could, then the question should be submitted to the jury under the appropriate instructions. If they could not, then submitting the issue to the jury would not be justified. Leigh v. Lundquist, 540 P.2d 492, 494 (Alaska 1974); Cummins v. King and Sons, 453 P.2d 465, 466-67 (Alaska 1969). Where a sufficient evidentiary base does not exist, the trial court is under no duty to instruct the jury on that issue. Groseth v. Ness, 421 P.2d 624, 629 (Alaska 1966). The issue thus becomes whether members of the jury, when viewing the evidence in the light most favorable to the Godfreys, could justifiably have had different views on the question of whether or not Mrs. Hemenway had violated the maximum speed limit. The record contains no direct evidence of Mrs. Hemenway's initial speed other than her testimony that she was "pretty sure" that she was not speeding. However, both accident reconstruction experts agreed that, under the circumstances, if Mrs. Hemenway had been traveling at fifty-five miles per hour prior to braking she would have stopped in approximately 150 feet. The tire marks show that Mrs. He-menway skidded 152 feet prior to impact. Additionally, Dr. Godfrey testified that she was very nearly stopped and Mrs. Hemen-way was still moving when the vehicles collided. Viewing this evidence in the light most favorable to the Godfreys, we believe that reasonable jurors could differ on the question of whether Mrs. Hemenway was exceeding the speed limit immediately prior to the accident. We therefore hold that the trial court erred in failing to instruct the jury on negligence per se. Moreover, the difference between a negligence per se instruction and an ordinary negligence instruction is such that this error cannot be considered harmless. See Lopez v. Brown, 495 P.2d 64, 66 (Alaska 1972). Having decided that reversal is required on this ground, it is unnecessary for us to reach the Godfreys' remaining contentions. It is also technically unnecessary for us to reach the issues raised in the cross-appeal. However, our review of the record had disclosed one area in which we feel some guidance might be helpful to the trial court on remand. We have therefore elected to address the question of the effect of a stipulation entered into by the parties during discovery. This stipulation involved depositions of expert witnesses and included a provision stating, "The party taking the expert's deposition shall pay the expert his reasonable fee for time incurred in taking the deposition as provided by Rule 26(6)(4)(C)." The parties are now unable to agree on whether this stipulation was intended to constitute a waiver of future claims of costs. In general, the construction of stipulations is governed by the rules of contracts. Kimball v. First National Bank of Fairbanks, 455 P.2d 894, 898 (Alaska 1969). The primary concern of the courts is to determine the intent of the parties. Harsh Bldg. Co. v. Bialac, 22 Ariz.App. 591, 529 P.2d 1185, 1187 (1975); Parks v. Parks, 91 N.M. 369, 574 P.2d 588, 591 (1978); 83 C.J.S. Stipulations § 11 (1953). The courts look with favor on stipulations designed to simplify, shorten or settle litigation, or to save costs and will not give such stipulations a forced construction. Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1031 n.15 (Alaska 1972), rev'd on other grounds, City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979). Thus, the "[ljanguage of a stipulation, whether it be an agreed statement of facts or relates to other matters, will not be so construed as to give it the effect of a waiver of a right not plainly intended to be relinquished." State By and Through State Highway Commission v. Feves, 228 Or. 273, 365 P.2d 97, 102 (1961) (citation omitted). There is nothing in the language of the stipulation indicating an intent to relinquish future claims to costs. Rather, it appears to be designed merely to avoid having to seek a court order each time a party wished to depose an opponent's expert witness. We therefore believe that the stipulation should have no effect on a party's ability to recover as costs the expenses incurred in deposing expert witnesses. REVERSED and REMANDED. . Rule 51(a), Alaska R.Civ.P. provides in part: "Opportunity shall be given to make . . . objections out of the hearing of the jury, by excusing the jury or hearing the objections in chambers." . The rejected portion of the Godfreys' proposed instruction was drawn from 13 AAC 02.-275 and provided: (b) Except when a special hazard exists that requires lower speed for compliance with (a) of this section . a person may not drive a vehicle at a speed in excess of the maximum limit [of] . . . (3) 55 miles per hour on a paved state highway, other than a city street; . The Hemenways apparently concede that 13 AAC 02.275(b) accurately sets forth the applicable standard of reasonable behavior. Such a concession is consistent with our decision in Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971), where we stated that "violation of the vast majority of traffic laws would be tortious departures from the standard of the reasonably prudent driver." Id. at 264 n.24. See also Leigh v. Lundquist, 540 P.2d 492, 495 (Alaska 1975); Haisley v. Grant, 486 P.2d 367, 371 (Alaska 1971). . Mrs. Hemenway initially testified that she had been going her normal speed, which is about 40 miles per hour. On cross-examination, however, she admitted that she was not sure how fast she was going. While she was "pretty sure" she wasn't exceeding the speed limit, she admitted that she could have been going 50-55.

10446424

Floyd WORTHAM, Appellant, v. STATE of Alaska, Appellee

Wortham v. State

1980-10-03

No. 4741

510

513

617 P.2d 510

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:25:40.644665+00:00

CAP

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

Floyd WORTHAM, Appellant, v. STATE of Alaska, Appellee.

Floyd WORTHAM, Appellant, v. STATE of Alaska, Appellee. No. 4741. Supreme Court of Alaska. Oct. 3, 1980. Mark Weaver, Asst. Public Defender, and Brian Shortell, Public Defender, Anchorage, for appellant. W. H. Hawley, Jr., Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

1706

10201

OPINION BOOCHEVER, Justice. Floyd Wortham was tried on counts charging him with blackmail of Katherine Owings and unlawful sale of a narcotic drug, cocaine. When the jury indicated that it had reached agreement on the drug count but could not agree on the blackmail count, the state agreed to dismissal of the latter charge. Wortham appeals his conviction for unlawful sale of cocaine. His principal arguments on appeal are that the trial court erred in receiving evidence that the residence of Katherine Owings, who was a witness for the prosecution, was ransacked before Wortham's trial, and erred in admitting as evidence certain weapons found in Wortham's ear and home. We reject the arguments and affirm the conviction. Owings testified that in September, 1978, while on a visit to Anchorage, she met Wortham at a party. According to her testimony, he asked her to work for him as a prostitute. She refused, but because she was unable to obtain a ride back to Fairbanks, she consented to stay briefly with him because he promised to arrange transportation later. She maintained that Wort-ham thereafter imprisoned her in his house for approximately five days. During that period, she gave him her personal jewelry because he threatened to break her arms or shoot her. She had seen guns in the house. Eventually Owings returned to Fairbanks where she was contacted by the police. She agreed to assist the police in negotiating a drug purchase from Wortham in the hope of recovering her jewelry. She arranged a meeting between Wortham and Gail Reas, an undercover trooper. At the meeting, Owings and Reas requested Wortham's assistance in procuring cocaine. According to Owings and Reas, Wortham told them to drive him to a designated location. He left the car and returned shortly with a sample of white powder. Reas then gave him $700 in marked currency. He again departed and returned with a baggie containing 6.8 grams of cocaine. The following evening, Owings arranged another meeting to buy more cocaine from Wortham. No sale was consummated, however, and Reas decided to arrest Wortham. The police found two bills identified as part of the marked money given to him by Reas the previous day. A gun registered to Robert Scott, a passenger in Wortham's car, was discovered in the car at the time of Wortham's arrest. Subsequently, a search warrant was issued and executed at Wort-ham's residence. A number of guns, ammunition and a bayonet were seized. Wortham appeals his conviction, contending that the trial court abused its discretion in admitting: (1) the guns and ammunition seized from Wortham's residence; (2) the gun seized from the car at the time of his arrest; and (3) the testimony by Owings that her residence in Fairbanks had been ransacked. Wortham contends that guns and ammunition seized from his residence should not have been admitted as evidence because they were not relevant. We believe that the guns were admissible because they were clearly relevant to the blackmail charge, even though that charge was later dismissed. Owings testified that she stayed at his residence because he threatened to shoot her, and that she had seen guns in the house. Further, she gave her jewelry to him because he threatened her with physical harm. Moreover, Owings' testimony describing the types of weapons she had seen was sufficient to allow a jury to infer with reasonable certainty that the weapons seized from the residence were the weapons Owings had seen. It was for the jury to determine what weight, if any, to give the evidence. We hold that the trial court did not abuse its discretion in admitting this evidence. Newsom v. State, 533 P.2d 904, 908 (Alaska 1975). Next, Wortham argues that the trial court erred in admitting into evidence the gun seized from his car. We believe that, even assuming error, the error was harmless. The presence of firearms was probative on the question of blackmail and this charge was dismissed, so the evidence of the gun certainly did not contribute to a conviction on this count. As to the other charge, the evidence demonstrating that Wortham was guilty of the sale of cocaine was overwhelming. Whatever effect the disputed evidence might have had, we conclude that the error, if any, could not "appreciably affect the jury's verdict." Love v. State, 457 P.2d 622, 632 (Alaska 1969). Finally, Wortham contends that the trial court erred in admitting Owings' testimony that her residence had been ransacked. At a mid-trial bail hearing which resulted in remanding Wortham to custody, Owings testified that the back door to her residence was broken in and her apartment ransacked. Later that day the trial court heard arguments regarding the admissibility of this testimony at trial. The trial court ruled that there was a sufficient nexus between Wortham and the break-in to warrant admission of the evidence. It is clear that evidence of intimidation of a witness by a party is admissible in a criminal trial. State v. Adair, 106 Ariz. 4, 469 P.2d 823 (1970); People v. Perez, 169 Cal.App.2d 473, 337 P.2d 539 (1959); Saunders v. State, 28 Md.App. 455, 346 A.2d 448, 450 (1975); State v. Gonzales, 93 N.M. 445, 601 P.2d 78 (App.1979); see generally C. McCormick, Law of Evidence § 273, at 660-62 (2d ed. 1972); 2 J. Wigmore, Evidence § 277-78 (3d ed. 1940). The rationale for admissibility is that "[b]y resorting to wrongful devices [a defendant] is said to give ground for believing that he thinks his case is weak and not to be won by fair means." C. McCormick, Law of Evidence § 273, at 660 (2d ed. 1972). Where the act of intimidation is not actually committed by the defendant, there must be a connection between the defendant and the tampering. Evidence of such attempts by another is not admissible, however, where there is no evidence to connect the accused therewith. In order to make admissible evidence of attempts by a third person to influence a witness not to testify or to testify falsely, it must be established that such attempts were done by authorization of the accused . [T]he authorization by the accused may be proved by direct or circumstantial evidence and an inference may be sufficient to connect the accused. Saunders v. State, 28 Md.App. 455, 346 A.2d 448, 450-51 (1975) (citations omitted). Accord, State v. Gonzales, 93 N.M. 445, 601 P.2d 78 (App.1979). At the bail hearing, Darrell Frazier testified that during a conversation with Wortham after the break-in Wortham said that some of his out-of-state friends went to Fairbanks and "tore up her place, and stuff like that." He also said that Owings "wouldn't make it to court" and she was "not going to come out of the court room." On the basis of this testimony, the court ruled that there was a nexus between the break-in and Wortham. Although in his testimony before the jury Frazier gave less evidence connecting Wortham to the break-in, Wortham's counsel failed to renew his motion to preclude testimony concerning the break-in. Had Wortham's counsel objected, the prosecution could have elicited more evidence from Frazier to effectively connect the break-in with Wortham, as was done at the earlier hearing. The earlier unsuccessful effort to preclude admission of the testimony might reasonably have been considered by the prosecutor as having been abandoned when no foundational objections were raised at trial. We do not believe that the trial court abused its discretion in admitting Owings' testimony. The testimony by Frazier established a sufficient inference that Wortham was connected with the break-in of Owings' residence. We also reject Wortham's argument that, even assuming the testimony was probative, the trial court abused its discretion in admitting the testimony because its presentation was so prejudicial, especially since Ow-ings was recalled to present this testimony. Wortham has failed to establish an abuse of discretion. Frink v. State, 597 P.2d 154, 170 (Alaska 1979); Ladd v. State, 568 P.2d 960, 968 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); Poulin v. Zartman, 542 P.2d 251, 260 (Alaska 1975). The conviction is AFFIRMED. . Wortham testified that he met Owings at a Kentucky Fried Chicken restaurant because he was hungry. He further stated that he suspected Reas was a Metro agent and refused to become involved in any cocaine transactions. . Wortham maintained that the bills were planted on him. . See Eben v. State, 599 P.2d 700, 711 (Alaska 1979) ("The state need only have shown as a matter of reasonable certainty that the four knives were kitchen knives removed from the Eben apartment"). See also United States v. Johnson, No. CA 78-2736 (9th Cir. 1980). . Id. at 711 n.31. . Frazier testified as follows: There was some people that went to Fairbanks and tore up her place, and stuff like that. He was telling me about. . . . [Sjome people went up there and they went through her house and stuff like this. And that-that she wouldn't make it to court someways. . . [H]e told me that somebody went-some people went up to Fairbanks. . . And that they was going to do this and that, you know, and Cathy (Owings) was not going to come out of the courtroom. Q. these people were-were they friends of Floyd's or what? A. Supposedly they were. Q. Did Floyd tell you this, or are you just thinking this? A. He said that he has some friends out of state. ed That he had some friends out of state? A. Up here. Yeah. Q. . [Tjhey were going up to Fairbanks? A. . he didn't say they were going up to Fair-... he said he had some friends-some people of his went up to Fairbanks, you know. A. And I guess that's when Cathy Owings' house was supposed to have been terrorized and stuff. [Emphasis added.]

11443831

George W. BISHOP, Appellant, v. Stacey A. CLARK, Appellee

Bishop v. Clark

2002-09-13

No. S-9232

804

817

54 P.3d 804

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:27:54.967740+00:00

CAP

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

George W. BISHOP, Appellant, v. Stacey A. CLARK, Appellee.

George W. BISHOP, Appellant, v. Stacey A. CLARK, Appellee. No. S-9232. Supreme Court of Alaska. Sept. 13, 2002. Claire Steffens, Law Offices of Claire Stef-fens, Anchorage, for Appellant. Allan Beiswenger, Robinson & Beiswen-ger, Soldotna, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

6771

41736

OPINION EASTAUGH, Justice. I. INTRODUCTION Was it error to award Stacey A. Clark a one-half interest in certain property accumulated while she cohabited with George W. (Will) Bishop? Because we hold that it was error to conclude that a settlement agreement the parties executed in 1998 superseded their 1996 agreement which allocated some of the disputed property to Will, we reverse and remand for consideration of Stacey's claim that she signed the 1996 agreement under duress. Because we affirm the finding that the parties impliedly agreed "to share in the fruits of [their] relationship as though they were married," we affirm Stacey's award of a one-half interest in property not allocated by the 1996 agreement. II. FACTS AND PROCEEDINGS Stacey and Will began dating in 1979 and 'cohabited between 1983 and 1996, when they separated. They never married. They had two children. One was born in 1989; the other was born in 1998. In 1980 Will purchased a Bristol Bay set-net permit to fish for salmon at Coffee Point. Stacey worked that summer for Will as a deckhand and received a "crew share" of the proceeds. In 1981 Will transferred the set-net permit to Stacey and purchased a second permit; Will explained that this arrangement was necessary because AS 16.48.140(c) prohibits a person from holding more than one entry permit for the same fishery. Between 1981 and 1995 the parties fished the permits as a joint enterprise. They testified at trial that they considered the Bristol Bay fishing enterprise to be a partnership. They sold fish under both permits, and they listed sales in either of their names based purely on convenience. Although Stacey declared for personal income tax purposes all the income generated from sales attributable to her permit, she gave Will all of the proceeds, except for an allowance she kept for personal expenses. Will was responsible for managing the finances of the fishing enterprise, and according to Stacey, she "worked right beside him, [doing] just as much as he did. [She] picked the fish, . took the fish to the market, . did the paperwork, . did the cooking, the cleaning, [and] took care of the crew." Will began lobster fishing in California in 1986. The extent of Stacey's participation in lobster fishing was disputed at trial. Stacey generally did not accompany Will on the lobster boat; rather, she baited traps, managed gear, obtained parts, and prepared lunches. In 1994 Will purchased a hull and put together a twenty-five-foot lobster boat for use in this fishery. Will purchased a lot in 1990 in the Mountain View subdivision in Homer for $32,000. Although the lot was titled in Will's name, "[the proceeds used to pay for the lot came from the parties' commingled funds." The lot was sold for $42,000 in February 1996. Will built a cabin on his sister's property on East Hill Road in Homer in 1994. Will and Stacey resided in the cabin whenever they were in Homer between 1994 and January 1996. Will and Stacey separated in January 1996. After they separated, Stacey continued to live in the cabin with her boyfriend/fiancee and her mother. On June 7, 1996, the parties reached the following agreement: To Whom it may concern: This is a fair distribution of the business assets based on the capital investments and contributions to this partnership. Stacey A. Clark is to keep all of her banking accounts, IRA accounts, 1990 Honda Accord automobile, Bristol Bay Setnet site and Bristol Bay Setnet Permit and Equip ment necessary to operate said permit and site and any debts [incurred] as of this date. George W. Bishop is to keep all of his banking accounts, IRA accounts, Bristol Bay Setnet site and Bristol Bay Setnet Permit and any equipment necessary to operate said permit and site, 1989 Chevy Blazer, 1989 GMC Pickup, 25 foot Force Boat, Lobster gear, House located mile .2 East Hill Road and any debts [incurred] as of this date. (Emphasis added.) Stacey filed a complaint for property division, child custody, child support, and attorney's fees in November 1997. Will counterclaimed, seeking joint physical custody of the children. A May 5, 1998 order required Will to pay interim child support of $1,862 per month and awarded Stacey interim attorney's fees of $2,500. In June 1998 the parties entered into a second agreement. It was titled "PROPER TY SETTLEMENT AGREEMENT." We discuss its terms in more detail in Part III.A. The 1998 agreement stated that the parties had identified "additional property which each has claimed an interest in." Paragraphs 2, 8, and 4 of the agreement listed and distributed "additional items" to the parties. In paragraph 5 the parties agreed to give up all potential claims against each other for "all property other than as provided herein." Paragraph 6 stated that "this settlement resolves all property issues except" those concerning (1) the East Hill Road cabin; (2) "the personalty, furnishings and appliances" in the East Hill Road cabin; (8) the 1997 fishing season; (4) the "sale of a piece of real property after June 7, 1996"; (5) the lobster boat; and (6) arrearages for interim child and spousal support. The superior court adopted this agreement on September 3, 1998. In October 1998 the parties entered into a child custody agreement which the superior court adopted, as amended, on February 10, 1999. The case proceeded to trial in February 1999. The trial was limited to the issues of distributing: the East Hill Road cabin, the furniture and appliances in the cabin, income from the 1997 fishing season, the Mountain View lot, and the lobster boat; and determining: child support arrearages, prospective child support, and the management of the children's permanent fund dividends. Finding an "implicit agreement of the parties to live together indefinitely and to share in the fruits of that relationship as though they were married," the superior court awarded Stacey a one-half interest in the disputed property. The court also ordered Will to pay child support arrearages and calculated prospective child support based on an average of Will's 1995 and 1996 adjusted gross income. Will unsuccessfully moved for reconsideration. The superior court entered final judgment for Stacey on July 19, 1999 for $81,942.17, including Alaska Civil Rule 82 attorney's fees of $9,001.44. Will appeals. III, DISCUSSION A. It Was Error To Conclude that the 1998 Settlement Agreement Superseded the 1996 Agreement as to the Disputed Property. Finding an "implicit agreement of the parties to live together indefinitely and to share in the fruits of that relationship as though they were married," the superior court awarded Stacey a one-half interest in certain property accumulated during the time parties cohabited. Thus, Stacey received a one-half interest in (1) the East Hill Road cabin, (2) the furniture and appliances in the cabin, (8) the proceeds from the sale of the Mountain View lot, and (4) the lobster boat and lobster-fishing gear. Even though the 1996 settlement agreement allocated the East Hill Road cabin, the lobster boat, and the lobster-fishing gear to Will, the superior court awarded Stacey a one-half interest in these items. The superior court concluded that the 1998 agreement, which stated that it did not resolve issues concerning these items, superseded the 1996 agreement. Thus, the superi- or court stated: "[Ilt seems clear to the court that the parties agreed that the issues identified in the 1998 agreement as unresolved were to be addressed by the court without reference to the 1996 agreement." Will challenges this conclusion. Whether the 1998 agreement superseded the 1996 agreement is a matter of contract interpretation to which we apply our independent judgment. A leading treatise explains the conditions under which a subsequent contract will supersede an earlier agreement: A subsequent contract completely covering the same subject-matter, and made by the same parties, as an earlier agreement, but containing terms inconsistent with the former contract, so that the two cannot stand together, rescinds, substitutes, and is substituted for the earlier contract and becomes the only agreement of the parties on the subject. Thus, a second contract will not supersede the first by implication unless the agreements are so inconsistent "that the two cannot subsist together." We conclude that the 1998 settlement agreement did not supersede the 1996 agreement in whole or in part, because the two agreements are not so inconsistent "that the two cannot subsist together." We note that the 1998 agreement characterizes the 1996 agreement as "allocating certain properties between [the parties]." (Emphasis added.) Paragraph 1 of the 1998 agreement similarly states that the earlier agreement "allocates to each party the equipment necessary to operate their respective permits"; use of the present tense implies that the 1996 agreement was still in effect. Paragraph 1 also states that the 1996 agreement "is deemed to have allocated to Stacey" certain equipment necessary to operate her setnet site. This also suggests that the parties intended the earlier agreement to remain in effect, so that they could each continue to operate their respective permits and sites. Furthermore, the 1998 agreement states that "the parties have identified additional property which each has claimed an interest in." (Emphasis added.) The words "additional items" also appear in the three paragraphs (paragraphs 2, 8, and 4) of the 1998 settlement agreement which purport to allocate specific items. This usage implies that the parties did not intend to supersede the 1996 agreement, but rather intended to supplement that agree ment by addressing issues not resolved by that agreement. Finally, we note that the 1998 agreement fails to address many of the items which the 1996 agreement had previously allocated; this also suggests that the parties did not intend to supersede the earlier agreement. True, paragraph 6 of the 1998 agreement provides that "[tlhe parties agree this settlement resolves all property issues except" issues "concerning," among others, the East Hill Road cabin and the lobster boat. But this does not mean that the 1998 agreement is inconsistent with the 1996 agreement, which allocated the East Hill Road cabin and the lobster boat to Will. Simply acknowledging that the parties agree that issues exist does not mean that the parties are agreeing to set aside provisions in a prior contract that arguably resolved those issues. We therefore hold that it was error to conclude that the 1998 settlement agreement superseded the 1996 agreement. Stacey argued in her trial brief that she signed the 1996 agreement under duress, "in large part due to physical abuse by Will." Stacey presented evidence at trial that the parties had argued and shoved each other a day before they signed the agreement, and that she had not seen the agreement until just before she signed it. The superior court, however, made no findings regarding Stacey's duress claim, having noted that "whether the document was signed under duress is irrelevant because the court finds that it was superseded by the agreement of June 1998. ." Because we conclude that the 1998 agreement did not supersede the 1996 contract, we must remand for findings regarding duress. If the superior court concludes on remand that Stacey did not sign the 1996 agreement under duress, it must award the East Hill Road cabin, the lobster boat, and the lobster-fishing gear to Will, per the terms of the 1996 agreement. If the superior court concludes that Stacey signed the 1996 agreement under duress, the 1996 agreement would be void and should not control the ultimate property disposition. B. It Was Not Error To Award Stacey a One Half Interest in the Disputed Property Not Allocated by the 1996 Agreement. 1. It was not error to find an implicit agreement between Will and Stacey to "share in the fruits of [their] relationship as though they were married." In granting Stacey a one-half interest in the disputed property, the superior court found an "implicit agreement of the parties to live together indefinitely and to share in the fruits of that relationship as though they were married." (Emphasis added.) The court explained: Here the parties co-habitated and worked together from 1979. They lived together, at least during the summers starting in 1980 when the first set net permit and site was purchased, until 1982 when plaintiff graduated from high school. Following graduation and until January of 1996 the parties resided together, worked together, vacationed together and gave birth to two children. Defendant kept the books, and was in charge of finances. Plaintiff worked alongside him until the children arrived and thereafter had no significant employment outside of the home. We treat the court's decision as finding that these cohabiting parties impliedly agreed to the distribution of property accu mulated during cohabitation. Will challenges this finding. We review it de novo. In Wood v. Collins, we held that "property accumulated during cohabitation should be divided by determining the express or implied intent of the parties." Quoting Beal v. Beal, we stated: We believe a division of property accumulated during a period of cohabitation must be begun by inquiring into the intent of the parties, and if an intent can be found, it should control that property distribution. While this is obviously true when the parties have executed a written agreement, it is just as true if there is no written agreement. The difference is often only the sophistication of the parties. Thus, absent an express agreement, courts should closely examine the facts in evidence to determine what the parties implicitly agreed upon. In summary, we hold that courts, when dealing with the property disputes of a man and a woman who have been living together in a nonmarital domestic relationship, should distribute the property based upon the express or implied intent of those parties. In determining the intent of cohabiting parties, courts consider, among other factors, whether the parties have (1) made joint financial arrangements such as joint savings or checking accounts, or jointly titled property; (2) filed joint tax returns; (8) held themselves out as husband and wife; (4) contributed to the payment of household expenses; (5) contributed to the improvement and maintenance of the disputed property; and (6) participated in a joint business venture. Whether they have raised children together or incurred joint debts is also important. Although it is a close question in this case, we conclude that the totality of cireum-stances supports the superior court's finding of an implied agreement between Will and Stacey "to share in the fruits of [their] relationship as though they were married." Both parties testified that they considered the Bristol Bay fishing enterprise to be a partnership. Will commingled income from the fishing partnership with his separate income by depositing the funds in his separate accounts; payments for the disputed property and other household expenses were made from those accounts. The parties also had joint checking and savings accounts, from which household expenses were paid. Finally, the parties had two children together. We therefore conclude that it was not error to award Stacey a one-half interest in the disputed property not allocated by the 1996 settlement agreement-i.e., the furniture and appliances in the East Hill Road cabin and the proceeds from the sale of the Mountain View lot. 2. It was not error to conclude that issues regarding the division of the proceeds from the sale of the Mountain View lot were open to adjudication. Paragraph 5 of the 1998 settlement agreement provides that "[the parties agree that they give up all potential claims each against the other for all debts and all property other than as provided herein." Paragraph 6(d) of the 1998 agreement provides that the agreement does not resolve "issues pertaining to sale of a piece of real property after June 7, 1996." (Emphasis added.) Stacey argues that paragraph 6(d) refers to the sale of the Mountain View lot. Stacey asked the superior court to award her an interest in that lot's sale proceeds. Will responded, and maintains on appeal, that because the Mountain View lot was sold in February 1996, it is not the real property referred to in paragraph 6(d). Will therefore concludes that under paragraph 5 of the 1998 agreement, issues regarding the division of the proceeds from the sale of the lot are not open to adjudication. The superior court, while noting that the Mountain View lot was sold in February 1996, stated that the 1998 agreement "was prepared by [Will] and he affords no explanation as to what is the real property referred to at that point in the agreement." The court therefore awarded Stacey a one-half interest in the Mountain View lot sale proceeds. Because the superior court interpreted paragraph 6(d) of the 1998 settlement agreement to apply to the sale of the Mountain View lot-an interpretation contrary to the language of the agreement-the court essentially reformed the 1998 agreement. "Reformation of an instrument is the proper remedy where it is alleged that the instrument does not conform to the actual intentions of the parties." It is a "means of correcting mutual mistakes and of conforming a contract to the clear intention of the parties." Reformation may be granted, however, "only when it is shown by clear and convincing evidence that it is appropriate." It does not appear that the superior court applied the clear and convincing evidence standard in reforming the parties' agreement. But even if it had applied that proof standard, it is difficult to imagine how it could have reached a different result. There is no evidence in the record of any other property which paragraph 6(d) of the 1998 agreement could have been describing. Will's argument would render the provision completely meaningless. Although he insists that paragraph 6(d) does -not contemplate the sale of the Mountain View lot, he has provided no alternative explanation for the provision and has identified no other property to which paragraph 6(d) might have referred. Therefore, we hold, as a matter of law, that paragraph 6(d) refers to the sale of the Mountain View lot. Accordingly, issues regarding the division of proceeds from the sale of that lot were open to adjudication. The superior court therefore permissibly chose to divide those proceeds. 3. It was harmless error to apply divorce law to divide the parties' property. In dividing the parties' property, the superior court applied "the same body of law that would be applied in resolving a property dispute between parties seeking a divorce." The court stated that it "[saw] no reason not to look to factors A through I enumerated in AS 25.24.160(a)(4) {the statutory provision governing division of property in a divorce action]." -It was error to apply divoree law to divide the parties' property. In Sugg v. Morris, we held that "the equitable principles which apply to the judicial division of marital property of a man and woman who had been living together in lawful wedlock or in a bona fide putative marriage are not applicable where the man and woman have been knowingly living in a [non-marital] relationship ." Moreover, AS 25.24.160(a) applies by its terms only to "action[s] for divorce or action[s] declaring a marriage void ." As we noted above in Part IIILB.1, the property the couple accumulated must be divided in accordance with their intentions. But because the superior court would have reached the same result without relying on divorce law, the error was harmless. Its July 20, 1999 order noted that "whether the interests of the parties are determined through applications of the factors enumerated in AS 25.24.160(a)(4) or the principles of partnership law where the relative contributions of the parties cannot be determined and the partners co-habit, the results are the same. The property should be divided equally." Because the superior court found elsewhere that the parties agreed to "share in the fruits" of their long-term relationship, it would have divided equally the property accumulated during the period of the parties' cohabitation even had it not relied on divorcee law. C. Other Issues 1. Separate property Will argued below that he purchased the Mountain View lot and the furniture and appliances in the East Hill Road cabin with funds from a $200,000 inheritance he received after his father's death in 1984. The superior court declined to award these items to Will as his "separate property." It reasoned that "it is almost impossible for this court to track the use of defendant's inheritance and he made little effort to do so during trial." It also noted that "[all monies earned or inherited by the couple were co-mingled ." Finally, it stated that "given the nature of the [parties'] relationship, the court finds that it was [Will's] intention to gift a share of the inheritance to [Stacey] as it was expended." Will argues on appeal that it was error to award Stacey an interest in property purchased with funds from his inheritance. Assuming without deciding that the concept of "separate property" applies to the division of property accumulated during cohabitation, a party arguing that assets were purchased with separate funds has the burden of proving the source of the funds. Because Will admitted at trial that he commingled the proceeds from the Bristol Bay fishing enterprise with his inheritance, and because he offered no evidence at trial tracing the source of the funds he used to purchase the disputed property, we affirm the award to Stacey of an interest in property allegedly purchased with the inheritance. 2. Jurisdiction Will argues that the superior court lacked jurisdiction to determine Stacey's interest in the East Hill Road cabin, because Will's sister, Phyliss Bishop, on whose property the cabin was built, was not joined as an indispensable party. Will cites Silvers v. Silvers, where we stated that " '[als a general rule, an owner of property must be joined as an indispensable party in any action that may adversely affect her interest in the property.'" The superior court's award did not purport to affect Phyliss Bishop's interest in the East Hill Road property. It merely awarded Stacey one-half of the value of the cabin "independent of the underlying real estate." In effect, the court was simply dividing the interest which Will elsewhere asserted was his. We perceive no jurisdictional error. 3. Interim attorney's fees The superior court awarded Stacey interim attorney's fees of $2,500, without citing legal authority for the award. Will argues that there was no permissible basis for this award. This argument lacks merit. We have held that in actions between unmarried couples that resemble divorcee proceedings the rules governing the award of attorney's fees in divorce cases will be applied. When the court awarded interim attorney's fees, the present case closely resembled a divorce action, given the short period of time between the breakup of the parties' relationship and the filing of the action and the fact that property division, child custody, and child support issues were in dispute. Because courts have the authority to enter interim awards of attorney's fees in divorce litigation, such authority also applies to cases, like this one, that closely resemble divorcee litigation. As we stated in Sanders v. Barth, "[the rule concerning attorney's fees in divorces] should be reserved for cases that closely resemble divorcee actions and for cases that involve disputes-such as disputes about custody or the initial division of property-for which it is of paramount importance that the parties be able to litigate on a 'fairly equal plain.'" Based on Bergstrom and Sanders, we conclude that the superior court had inherent authority to award interim fees. We also hold that it did not abuse its discretion in doing so. 4. Rule 82 attorney's fees The superior court's July 19, 1999 judgment included an Alaska Civil Rule 82 attorney's fees award of $9,001.44 to Stacey. The award was calculated under Rule 82 based on the value of the property awarded to Stacey. 'Will argues on appeal that it was an abuse of discretion to award attorney's fees under Rule 82, rather than under the divorce case standard, which takes into account the parties' relative economic circumstances. Will's argument is not well taken. We have held that in a dispute between unmarried individuals limited to the issues of child custody and support, attorney's fees and costs should be governed by the standard used in divorce actions; that standard considers the parties' relative economic circumstances. But in property disputes between unmarried cohbhabitants, we have upheld attorney's fees awards under Rule 82. It was not an abuse of discretion to award Stacey attorney's fees under Rule 82 based on the value of the property awarded to her. 5. Interim child support On May 5, 1998 the superior court ordered Will to pay interim child support of $1,862.00 per month, retroactive to December 1, 1997. Will appeals this award, arguing that the superior court erred (1) by awarding interim child support without properly determining child custody; and (2) by not basing the award on the actual percentage of time the children were with each parent. Will first contends that the superior court violated his due process rights by failing to hold a hearing to determine the children's bests interests before awarding Stacey primary interim physical custody. But Will did not request a hearing until after the superior court entered its May 5, 1998 order; by then the court had already reviewed Stacey's motion for interim relief, Will's opposition, and Stacey's reply. Furthermore, Will does not claim any adverse effect causally related to the lack of hearing. In contrast, Will's authority for this contention consists of cases presenting much more significant due process concerns than any alleged deprivation here. We therefore decline to reverse the interim child support order on this ground. Will next argues that although the superior court's interim custody order awarded primary physical custody of the children to Stacey, Will had physical custody of the children forty-three percent of the time in the period before the parties reached a custody agreement. Will argues that it was therefore error not to calculate the interim child support under the shared-physical-custody formula set out in Alaska Civil Rule 90.3(b). We have consistently held that child support awards should be based on the court's custody or visitation order rather than on the parties' actual custody arrangement. We therefore affirm the interim child support award of $1,361 per month because it was based on the superior court's May 5, 1998 interim award of the childrens' primary physical custody to Stacey. But because the May 5, 1998 interim custody award was made retroactive to December 1, 1997, and there was no previous child custody order before the May order was entered, we reverse and remand for recalculation of the child support due based on the parties' actual custody arrangement for periods before May 5, 1998. 6. Prospective child support The superior court's June 1999 decision stated that "[flor purposes of calculating [prospective] child support payments, the court will average [Will's] 1995 and 1996 reported adjusted gross income." Will argues that it was an abuse of discretion to base the prospective child support award on his 1995 income, because his "income in 1995 was [aberrantly] high, due to a record salmon return." Moreover, Will contends that the superior court failed to consider that the Bristol Bay fishery had collapsed in 1997. The superior court's June 1999 decision specifically acknowledged the "recent low salmon runs experienced in Bristol Bay." But given "strong evidence that losses or expenses from the operation of [Will's] business during 1997 were attributed to [Will] resulting in a negative adjusted gross income, while income from the same operation was attributed to his wife," the superior court decided to calculate Will's child support obligation by averaging his 1995 and 1996 reported adjusted gross income. Because the record contains adequate evidence of what the court called Will's "creative bookkeeping," we hold that the superior court did not abuse its discretion in choosing to base the prospective child support award on an average of Will's 1995 and 1996 adjusted gross income. IV. CONCLUSION Because it was error to conclude that the 1998 settlement agreement superseded the 1996 agreement, we REVERSE and REMAND for a determination whether the 1996 agreement was signed under duress. We AFFIRM the superior court's finding of an implied agreement between the parties "to share in the fruits of [their] relationship as though they were married," and therefore AFFIRM the award to Stacey of a one-half interest in the property not distributed by the 1996 agreement. We REMAND for recalculation of the interim child support to be awarded for the period December 1, 1997 to May 5, 1998. We otherwise AFFIRM the child support award. We AFFIRM the attorney's fees awards. FABE, Chief Justice, with whom MATTHEWS, Justice, joins, concurring in part and dissenting in part. . During this period, however, Will and Stacey spent considerable time apart. For example, Stacey spent the winters in 1985 and 1986 in Everett, Washington. Will spent several months in 1994 and 1995 in California fishing for lobster without Stacey. . By transferring Bristol Bay setnet permits to "trusted friends or family members," Stacey and Will eventually acquired two additional permits, for a total of four. . Will built the East Hill Road cabin on property owned by his sister, Phyliss Bishop. The cabin was appraised at $35,000, independent of the underlying real estate. The superior court awarded the cabin to Will "because of the relationship with his sister," but ordered Will to pay Stacey "$17,500 representing her interest in the cabin." See Key Pacific Mortgage, Inc. v. Indus. Indem. Co., 845 P.2d 1087, 1089 (Alaska 1993). 15 Warrer HE. Jaraer, Wirriston on Contracts § 1826, at 485-86 n. 9 (3d ed.1972) (citation omitted); see also id. at 485 ("A contract containing a term in consistent with a term of an earlier contract between the same parties is interpreted as including an agreement to rescind the inconsistent term in the earlier contract.") (citation omitted); Restatement or Contracts § 408 (1932); see also Juneau Educ. Assoc. v. City & Borough of Juneau, 539 P.2d 704, 706 (Alaska 1975) (" [It is a well settled principle of law that [a] later contract supersedes [a] former contract as to inconsistent provisions.'") (quoting NLRB v. Int'l Union of Operating Eng'rs, Local No. 12, 323 F.2d 545, 548 (9th Cir.1963)). Because no court order adopted the 1996 agreement, the superior court correctly treated this as a supersession dispute. It is not clear whether the superior court found that the 1998 agreement completely or only partially superseded the 1996 agreement. The court's order stated that "[the court finds that the June 1996 agreement although incorporated in part by reference was superseded by the 1998 agreement." This finding suggests that the court considered the 1996 agreement to have no independent effect after the parties entered into the 1998 agreement. And the court decided that Stacey's argument that she signed the 1996 agreement under duress was irrelevant given its finding that the 1998 agreement superseded the 1996 agreement. In any event, the court resolved the four property disputes without referring to the 1996 agreement or relying on its terms. . Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 479 (1945). . Id. . In D.M. v. D.A., 885 P.2d 94, 96 (Alaska 1994), the superior court voided a settlement agreement between cohabiting parties because it was signed under duress. "The finding of duress was based on a history of domestic violence between D.M. and D.A., including an incident two days prior to the signing of the contract." Id. at 96 n. 2. D.M. did not challenge that finding on appeal. See id. . On remand, the superior court may not redistribute the disputed property allocated by the 1996 settlement agreement. When the superior court distributes property accumulated during non-marital cohabitation, it "must determine the express or implied intent of the parties with respect to each item of property."" Lacher v. Lacher, 993 P.2d 413, 421 n. 28 (Alaska 1999) (citing Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991)). . See Helstrom v. North Slope Borough, 797 P.2d 1192, 1197 (Alaska 1990). . See Wood, 812 P.2d at 955-56, 955 n. 4 ("Applying the law to a given set of facts is a question of law subject to de novo review."). . 812 P.2d 951, 956 (Alaska 1991) (citing Beal v. Beal, 282 Or. 115, 577 P.2d 507, 510 (1978) (en banc)). . Wood, 812 P.2d at 956 (quoting Beal, 577 P.2d at 510 (internal ellipses omitted)). . See D.M., 885 P.2d at 98. . See, e.g., Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923, 925 (1986). . See, eg., id. . See, e.g., Rissberger v. Gorton, 41 Or.App. 65, 597 P.2d 366, 370 (1979). . See, e.g., Beal, 577 P.2d at 510. . See, e.g., Western States Constr., Inc. v. Michoff, 108 Nev. 931, 840 P.2d 1220, 1221-22 (1992). . D.M., 885 P.2d at 96. . Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989). . See D.M., 885 P.2d at 97; see also Ahwinona v. State, 922 P.2d 884, 887 (Alaska 1996) (holding party wishing to reform contract bears burden of establishing through clear and convincing evidence that omission was mutual mistake) (citation omitted). . 392 P.2d 313, 316 (Alaska 1964). . See Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992) ("It is the duty of the parties . to ensure that all necessary evidence is before the court in divorce proceedings."); cf. Coffland v. Coffland, 4 P.3d 317, 321-22 (Alaska 2000) (affirming trial court's determination that husband failed to show sufficient evidence of marital debt). . 999 P.2d 786, 792 (Alaska 2000) (quoting B.B.P. Corp. v. Carroll, 760 P.2d 519, 525 (Alaska 1988)). . Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989); see also Sanders v. Barth, 12 P.3d 766, 768-69 (Alaska 2000) (explaining rule). . 12 P.3d 766, 769 (Alaska 2000). . See Bergstrom, 779 P.2d at 1238. . See Wood, 812 P.2d at 957; Levar v. Elkins, 604 P.2d 602, 604 (Alaska 1980). . For example, in Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983), we held that the mother was deprived of due process where the superi- or court scheduled an expedited hearing solely to determine the child's school placement for the upcoming year, but spontaneously and without notice transformed the proceeding into one that decided the issue of permanent custody. We further noted that the mother's lack of notice adversely affected her ability to adequately present her case. Id. . See Bennett v. Bennett, 6 P.3d 724, 727 (Alaska 2000); Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996). . Will asserts that in calculating child support the superior court failed to include in Stacey's income rental payments of $550 Stacey received monthly. We do not reach this issue because Will does not adequately brief it. He does not discuss the issue in the argument portion of his opening brief; he mentions the failure to include the rent only in passing in his statement of the case; and he addresses the issue in only one sentence in the argument portion of his reply brief. We therefore consider the issue waived. Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) (stating that generally "issues not briefed or only cursorily briefed are considered waived").

10439151

Walter W. FIROR, Appellant, v. Betty Lou FIROR, Appellee

Firor v. Firor

1981-08-21

No. 5493

538

539

632 P.2d 538

632

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

Before RABINOWITZ, C. J., CONNOR, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice.

Walter W. FIROR, Appellant, v. Betty Lou FIROR, Appellee.

Walter W. FIROR, Appellant, v. Betty Lou FIROR, Appellee. No. 5493. Supreme Court of Alaska. Aug. 21, 1981. James D. Oswald, Asst. Public Defender, Brian Shortell, Public Defender, for appellant. Max F. Gruenberg, Anchorage, for appel-lee. Before RABINOWITZ, C. J., CONNOR, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice.

749

4379

OPINION MATTHEWS, Justice. Walter W. Firor failed to make "rehabilitative alimony" payments as required by the terms of a property settlement incorporated into his divorce decree. Betty Lou Firor obtained two separate default judgments, totaling $15,626.00, for the arrears. Mrs. Firor brought a motion in superior court seeking to have Mr. Firor held in contempt of court. A hearing to show cause why he should not be held in contempt was convened before a standing master on May 12, 1980. Mr. Firor appeared. He was not told that he had the right to have an attorney, or that one would be provided him if he could not afford one. He was advised that a finding of contempt could result in a jail term of up to six months, that he had the right to a jury trial, and that he had the right to remain silent. He stated that he would proceed without a jury. After Mrs. Firor's attorney established that payments had not been made, Mr. Firor testified. He stated that he had been unemployed for two years, being supported by his roommate. He testified that he owned no property and had insufficient income to pay the alimony. He said that he had not sought regular employment because "I have so many judgments against me . . . there's no way I could ever make a dime." The master stated that he would recommend that Mr. Firor be found in contempt because he had not sought employment, relying on Houger v. Houger, 449 P.2d 766 (Alaska 1969), and that he would recommend a thirty day jail term. Mr. Firor at that point asked, "Can I get appointed a legal attorney?" The master thereupon appointed the public defender to represent Mr. Firor. Mr. Firor's attorney filed objections to the master's report, citing jurisdictional, constitutional, and substantive errors of law. A hearing on the objections was held before Judge Carlson on July 28, 1980. At that hearing there was no further testimony on the- merits of the show cause motion. Mr. Firor did, however, testify as to his understanding of the events at the prior hearing. His testimony was that he had not understood that the hearing before the master was "an actual court" and that he "thought someplace along the line I'd get appointed an attorney." But, he said, he did not realize that he had the right to an attorney at the proceeding before the master. After argument, Judge Carlson found that Mr. Firor had waived his right to an attorney, that substantial evidence supported the master's findings and adopted the master's report as the order of the court. Mr. Firor appeals. It is not contested that Mr. Firor was entitled to an attorney at the show cause hearing on contempt charges. See Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974). Likewise, counsel for appellee acknowledged in oral argument, correctly in our view, that there was no valid waiver by Mr. Firor of his right to counsel because he was not advised prior to the hearing that he had such a right. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962). The court's finding that a waiver occurred at the hearing was error. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and under standingly rejected the offer. Anything less is not a waiver. Mrs. Firor argues that the proceedings which took place before Judge Carlson have cured the infirmity of the master's hearing. Such an argument would be tenable only if Judge Carlson had set aside the master's report and held an entirely new trial. Instead, however, the court adopted the master's report in its entirety. The trial before the master was the only trial which took place in this case. Because it was conducted in violation of Mr. Firor's right to counsel it must be set aside. REVERSED AND REMANDED. BURKE, J., not participating. . Whether alimony payments may be enforced by contempt proceedings, and whether the master had authority to hear contempt proceedings are not briefed in this appeal. On remand, the parties may wish to address these issues.

10582781

Casimir SANUITA, Donald Holton and Vivien Sanuita, Appellants, v. Henry HEDBERG, Appellee

Sanuita v. Hedberg

1965-07-28

No. 522

647

652

404 P.2d 647

404

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:35.076971+00:00

CAP

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

Casimir SANUITA, Donald Holton and Vivien Sanuita, Appellants, v. Henry HEDBERG, Appellee.

Casimir SANUITA, Donald Holton and Vivien Sanuita, Appellants, v. Henry HEDBERG, Appellee. No. 522. Supreme Court of Alaska. July 28, 1965. Casimir Sanuita, Donald Holton and Vivien Sanuita, in pro. per. Ronald G. Benkert, Groh & Benkert, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

2400

14181

DIMOND, Justice. The superior court determined that appellants had libeled appellee by publishing a defamatory statement concerning him, and entered a default judgment against appellants for damages in the sum of $2,400. Appellants contend on this appeal: (1) that the court erred in refusing to set aside a default which had been entered against them, (2) that appellee's complaint failed to state a claim upon which relief could be granted , and (3) that the court erred in holding that the publication complained of was libelous per se. Appellants' first contention is the only one we need consider, for it is dispositive of this appeal. We hold that the trial court ought to have granted appellants' motion to set aside the entry of default, and that the judgment by default was therefore improperly entered. Appellants were served with a summons and copies of appellee's complaint on April 14, 1960. The summons required appellants to serve on appellee's counsel an answer to the complaint within 20 days after service of the summons. The 20-day period expired on May 5, 1960. On May 6 appellants filed an entry of appearance and a demand for jury trial. They also sent to appellee's counsel a document which stated: GENERAL DENIAL We, the defendants, generally deny all the allegations contained in this complaint. This latter document does not appear to have been filed with the court. The exact date that it was sent to appellee's counsel is not apparent from the record, although it might be assumed from a statement made by appellee's counsel that the document was received by him shortly after appellants had filed their entry of appearance and demand for jury trial. On appellee's motion, the clerk entered a default against appellants on August 4, 1960. Four days later appellants moved to set the default aside, stating that: 1. In acting in their own defense, the Defendants were not versed on the Rules of Civil Procedure. 2. Therefore, when the Defendants filed "APPEARANCE" and "JURY DEMAND" with the court on May 5, 1960, (copies herewith attached) they believed this action was sufficient. A notice of hearing to set aside the default was not served on appellee by appellants as required by Civil Rule 77(a). On September 9, 1960 appellants served and filed a one-page document, signed by them, which stated simply: GENERAL DENIAL OF ALL ACCUSATIONS BY ALL OF THE DEFENDANTS Approximately six months later, on March 1, 1961, appellants filed a document entitled "Answer and General Denial to Plaintiff's Complaint". In this document appellants denied generally all of the allegations of appellee's complaint and alleged affirmatively, with respect to the allegations that appellants had libeled appel-lee, the defenses of qualified privilege and truth. No further action was taken in this case for the next 18 months. On November 16, 1962 appellants' motion to set aside their default was considered by the court and denied. The records show that appellee's counsel was present in court but that appellants were not. Another four months went by with no action being taken in the case. Then on March 20, 1963 the court entered an order and notified appellee that the case would be dismissed for failure to prosecute on April IS, 1963 unless appropriate action was taken to ready the case for trial or to dispose of it before that date. In September 1963 the court conducted a hearing on appellee's application for a default judgment. Following this hearing, the court filed a m imorandum decision holding that appellee had been libeled by appellants and was entitled to recover from them nominal damages. On November 27, 1963 the court wrote to appellee's counsel advising him that since the entry of the court's memorandum decision of October 15, it had been brought to the attention of the court that notice of ap-pellee's application for a default judgment had not been given to appellants, and that such notice was required by rule since appellants had appeared in the action. The court said in part: In view of this apparent failure to comply with the rules, which has just now been brought to the court's attention, you are advised that, unless you appear in this action within ten days from date of this letter, and show the inapplicability of Rule 55(c) (1), (2), and (3), or comply with this rule by giving notice to the defendants, the court will set aside its decision entered in this matter on the 15th day of October, 1963, and enter judgment on behalf of the defendants for failure of the plaintiff to prosecute. On January 3, 1964 the court set aside its memorandum decision of October 15, 1963 and ordered that the matter of appellee's application for default judgment be set for another hearing upon giving proper notice to appellants. The second hearing was held on March 17 and 18, 1964. A memorandum decision. of the court was filed April 15, 1964, and a default judgment against appellants was finally entered on June 4, 1964. We have mentioned in some detail the lengthy history of this case in the court below because it bears upon the question of whether the court was correct in denying appellants' motion to set aside their default. Civil Rule 55(e) provides that "For good cause shown the court may set aside an entry of default This does not mean that if in fact good cause is shown, the court may or may not set aside the default. If the court had such discretion, there then would be no standard against which the exercise of such discretion could be tested when this court is asked to review the lower court's action. Rule 55(e) makes sense; we believe, when it is construed to mean that the court may set aside a default only if good cause is shown, but that it may not set aside a default when there is an absence of such a showing. Under such interpretation of the rule, the trial court's discretion would be directed to the question of whether or not good cause had been shown. We would then have a standard against which we could test the propriety of the exercise of such discretionary authority when called upon to review it, as we are here. If we determine that the judge justifiably could have concluded that good cause was not shown, then we would abstain from interfering with the exercise of his judgment. On the other hand, if we are left with the definite and firm conviction on the whole record that the judge had made a mistake in concluding that there was not a showing of good cause , then we would find an abuse of discretion and would be required to reverse and order the default set aside. We believe that good cause for setting aside the default was amply demon-stated in this case and that the judge was clearly mistaken in failing to take cognizance of it. The purpose of the Rules of Civil Procedure is to secure the just, speedy and inexpensive determination of every civil action or proceeding and to provide for the efficient operation of the state court system. It is generally consistent with that purpose to provide a time limit within which a defendant must plead or otherwise defend as to a plaintiff's complaint, and to further provide for the entry of the defendant's default if that time limit is not met. But circumstances may exist where strict adherence to the requirements of the rules will not advance the rules' objectives. Such circumstances exist here. Nearly four years elapsed between the date appellants' default was entered and the date that a default judgment was entered. In this situation, the speedy determination of actions and the efficient administration of the court system is in no way promoted by insisting that appellants permanently lost their standing in court when, within a day or two after the twenty-day period for answering had expired, they clearly showed their intention to contest the merits of ap-pellee's claim by making an appearance in court, by demanding a trial by jury of all issues of fact raised by the pleadings, and by notifying appellee's counsel in direct response to the summons served upon them that they generally denied all of the allegations contained in the complaint. From the record it appears that appellants' technical default was due to their lack of familiarity with the rules, and was not due to gross neglect or lack of good faith. Appellants have asserted a meritorious defense on the merits by denying appellee's assertions that they libeled him and by affirmatively pleading the defenses of qualified privilege and truth. The extraordinary long delay between the entry of default and the entry of a default judgment, not attributable to fault on the part of appellants, negates any suggestion that setting aside the default would have prejudiced or harmed appellee in any way — except to require him to prove his case. No good reason has been advanced for precluding the trial of this case on the merits. The purpose of the Rules of Civil Procedure is to secure not only the speedy, but also the just determination of every action or proceeding. We believe that justice would best be served by requiring the default and default judgment to be set aside so that the case may be disposed of on the merits. Good cause for setting aside the default exists; the court below was mistaken in not recognizing its existence and acting accordingly. This court has held that relief from a judgment is addressed to the sound discretion of the trial court and that that court's ruling will not be disturbed except upon a showing of abuse of discretion. (Footnote omitted.) The judgment is reversed and the case remanded for further proceedings in conformity with this opinion. . Appellee's complaint contained 23 separate claims, 22 of which were dismissed on the court's own motion for failure to state claims upon which relief could be granted. . The summons provided as follows: SUMMONS TO THE ABOVE-NAMED DEFENDANT: You are hereby summoned and required to serve upon Gordon W. Hart-lieb of the law firm of HARTLIEB and GROH, plaintiff's attorneys, whose address is 227 Fourth Avenue- — Box 2068, Anchorage, Alaska, an answer to the complaint which is herewith served upon you within Twenty (20) days after the service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. .Appellee's counsel, in his memorandum in opposition to a motion to set aside appellants' default filed August 29, 1960, stated in part: This cause was filed on April 13, 1960, in the Superior Court for the State of Alaska. On May 6, 1960, defendants filed a Demand for Jury signed by Casi-mir Sanuita, Donald W. Holton, Joseph M. Huston and Vivien Sanuita. On the same date they filed an appearance with the Court. Then in a letter to the plaintiff's attorney, the undersigned, wrote the document that follows: "GENERAL DENIAL We,- the defendants, generally deny all allegations contained in this complaint." The foregoing was typewritten and signed in writing by Casimir Sanuita, Donald W. Holton and Vivien Sanuita. The document contained no case caption or other caption of any kind whatsoever. A check of the Court files by the plaintiff, through the undersigned, revealed that this last document had not been filed with the Court. .Civil Rule 77(a) provides: Noiioe. Where there has been an adverse appearance, there shall be served with every written motion, other than one which may be heard ex parte, a notice of hearing thereon. A motion which is not accompanied by a notice of hearing shall not be placed on a motion calendar. . Civil Rule 55(e) (1) and (2) provide in part: (1) If the party against whom judgment by default is sought has appeared in the action, he ⅜ shall be served with written notice of the application for judgment at least 3 days pri- or to the hearing on such application. (2) When application is made to the court for a default judgment, counsel shall file a memorandum of the default * i . if the party against whom judgment by default is sought has appeared in the action or proceeding, the memorandum shall also indicate whether or not the record shows that notice has been served as required by paragraph (1) of this subdivision. Jefferson v. Spenard Builders' Supply, Inc., 366 P.2d 714, 716-717 (Alaska 1961). . This is the test we apply in determining whether a trial judge's findings of fact are clearly erroneous. Preferred Gen. Agency of Alaska v. Raffetto, 391 P.2d 951, 953 (Alaska 1964). . In Alaska Truck Transp. v. Inter-Alaska Credit Serv., 397 P.2d 618, 619-620 (Alaska 1964), we stated: . Civil Hules 1 and 92 provide as follows: Rule 1. Scope of Rules — Construction. The procedure in the superior court and so far as applicable, in the magistrate courts, shall be governed by these rules in all actions or proceedings of a civil nature — legal, equitable or otherwise. These rules shall be construed to secure the just, speecly and inexpensive determination of every action and proceeding. Rule 92. Construction of Rules. These rules are designed to provide for the efficient operation of the courts of the State of Alaska. If no specific procedure is prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules, the constitution, and the common law. . See Dalminter, Inc. v. Jessie Edwards, Inc., 27 E.R.D. 491, 493 (S.D.Tex.1961). . The showing of the existence of a meritorious defense is generally required in order to establish good cause for setting aside a default. Oaks v. Grocers Wholesale, Inc., 377 P.2d 1001, 1003 (Alaska 1963). . See Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245 .(3d Cir. 1951); General Tel. Corp. v. General Tel. Answering Serv., 277 F.2d 919, 92,1 (5th Cir. 1960); Davis v. Parkhill-Goodloe Co., 302 F.2d 489, 495 (5th Cir. 1962); Alopari v. O'Leary, 154 F.Supp. 78, 80-81 (E.D.Pa.1957).

10341281

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

Dansereau v. Ulmer

1995-09-22

No. S-6894

555

574

903 P.2d 555

903

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

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. No. S-6894. Supreme Court of Alaska. Sept. 22, 1995. Wevley William Shea, Anchorage, for Appellants. James L. Baldwin and Lauri J. Adams, Assistant Attorneys General, and Bruce M. Botehlo, Attorney General, Juneau, for Ap-pellees. Avrum M. Gross, Gross & Burke, P.C., Juneau, for Amicus Curiae North Slope Borough. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

11537

71264

OPINION EASTAUGH, Justice. I. INTRODUCTION Dana Dansereau and nine other voters (Contestants) challenged the validity of the November 8, 1994 gubernatorial election in which Tony Knowles was elected to the office of Governor of Alaska. The superior court granted summary judgment to the State of Alaska, thereby dismissing all of Contestants' claims. We affirm in part and reverse in part. II. FACTS AND PROCEEDINGS Contestants challenged the election by filing suit in December 1994, alleging that mal-conduct by the State and corrupt acts by third parties had occurred and that those acts were sufficient to change the result of the gubernatorial election. Contestants requested that the State conduct a new election for governor or declare James 0. Campbell Governor of Alaska. Contestants moved for summary judgment in mid-December 1994. The State cross-moved. The superior court granted the State's motion for summary judgment on February 8 and 9, 1995. This appeal followed. On appeal the North Slope Borough submitted an amicus curiae brief. Contestants advance three main arguments. First, they argue that a North Slope Borough voter assistance program, which offered to reimburse rural voters for the gasoline they used to transport themselves to the polls, violated state and federal election laws. Second, they argue that a postcard sent to Doyon, Limited (Doyon) shareholders violated federal and state election laws, because it offered entry in a $1,000 cash prize drawing to those who submitted a ballot stub, or similarly sized piece of paper, and stated that the Alaska Federation of Natives (AFN) overwhelmingly endorsed Tony Knowles for governor. Finally, Contestants assert that the State committed election malconduct in its operation of the Prudhoe Bay voting station. III. DISCUSSION The right to vote encompasses the right to express one's opinion and is a way to deelare one's full membership in the political community. Thus, it is fundamental to our concept of democratic government. Moreover, a true democracy must seek to make each citizen's vote as meaningful as every other vote to ensure the equality of all people under the law. Alaska Statute 15.20.540 is the statutory mechanism through which voters can challenge, under prescribed conditions, election results which they believe denigrated their right to vote. Because the public has an important interest in the stability and finality of election results, Dale v. Greater Anchorage Area Borough, 439 P.2d 790, 792 (Alaska 1968), we have held that "every reasonable presumption will be indulged in favor of the validity of an election." Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963). However, if the party challenging an election proves that misconduct occurred and that it could have changed the result of the election, we may vitiate the election or determine which candidate was elected. Boucher v. Bomhoff, 495 P.2d 77, 80 n. 5, 82 (Alaska 1972). Under AS 15.20.540, Contestants have the "dual burden" of showing that there was both a significant deviation from statutory direction, and that the deviation was of a magnitude sufficient to change the result of the election. Id. at 80. We here review the summary judgment dismissing the Contestants' lawsuit. Contestants argue that the three events constitute malconduet or corruption under AS 15.20.540 sufficient to change the results of the gubernatorial election. A. North Slope Borough's Gasoline Reimbursement Transportation Assistance Program During the 1994 election, the North Slope Borough (Borough) conducted a transportation assistance program allegedly designed to overcome the unique obstacles to voting participation posed by the Borough's vast and largely roadless geography. The Borough informed residents before election day that it would reimburse each voter for up to ten gallons of gasoline used by the voter to reach the polls. After voting, a resident could take his or her ballot stub to tables set up by the Borough near the election booths and fill out a "voter assistance voucher." On the voucher the voter would "swear or affirm" to the amount of gasoline used to transport the voter to the polls. The voter could then redeem the voucher for the specified amount of gasoline at a local fuel station before July 1, 1995. The Borough allowed all voters, regardless of how far they had travelled to the polls, to participate in this program. Contestants argue that this program violated federal and state criminal election laws. Contestants allege that the Borough imper-missibly expanded the transportation assistance program beyond the limited use condoned in advance by the United States Department of Justice Election Crimes Branch and that volunteers witnessing voters' signatures on gasoline vouchers allowed nearly all voters to claim ten gallons, even though most voters had not used that much gasoline to reach the polls. Contestants further allege that the Borough instituted the transportation assistance program with the intent of helping Candidate Knowles win the election. 1. The transportation assistance program is not illegal under Alaska law Contestants allege that the Borough's transportation assistance program violates AS 15.56.030 and is therefore a "corrupt practice as defined by law sufficient to change the results of the election" under AS 15.20.540(3). Contestants characterize the Borough's program as a "gas for votes" program and argue that thousands of persons were paid the value of up to ten gallons of gasoline to vote. Although AS 15.56.030(a)(2) prohibits a person from paying another person to vote for a particular candidate, proposition, or question, no Alaska Statute prohibits a person from compensating another person for voting per se. See AS 15.56.030. Thus, assuming the Borough's program paid voters with fuel to vote in the election, regardless of the amount of fuel the voters used to reach the polls, the program would not be a corrupt practice as defined by Alaska law, unless the offers of payment were made with the intent "to induce the person to vote for or refrain from voting for a candidate at an election." AS 15.56.030(a)(2). In stark contrast to federal election law, Alaska election law does not prohibit paying voters. See discussion infra. In this respect Alaska's statutory scheme is similar to the election laws of other states. For example, under California law it is not unlawful to offer any form of consideration, including cash payment, to a person to vote, provided that the payment is not an inducement to or reward for voting for, or refraining from voting, for a particular person or measure. California deleted language in the previous version of the statute dealing with voting, agreeing to vote, coming to the polls, or agreeing to come to the polls . since [this language] could, conceivably, be used to punish someone for having rewarded a voter for doing what is his [or her] civic duty — namely coming to the polls and voting. Various bicentennial attempts to produce large turnouts this year may well be in violation of these subsections. What needs to be prohibited is rewarding a person for voting in a particular manner, something [the statute] continues to do. Legislative Committee Comment 1976 Addition, former Cal.Elec.Code § 29621 (now § 18521). Similarly, Washington State election law prohibits any person from "directly or indirectly offering] a bribe, reward, or any thing of value to a voter in exchange for the voter's vote for or against any person or ballot measure, or authorizing] any person to do so...." Wash.Rev.Code Ann. § 29.85.060 (West 1993). In contrast, Oregon election law prohibits a person from directly or indirectly "giving or promising to give money, employment or other thing of value" to a person-with the intent to induce an individual to register or vote. Or.Rev.Stat. § 260.665(1) & (2)(a) (1993). However, Oregon specifically excludes "[f]ree transportation to and from the polls for persons voting" from this prohibition. Or.Rev.Stat. § 260.665(4)(f) (1993). Although the language of AS 15.56.030(a)(2) is not as unequivocal as the language of California's law, which states that one may not offer compensation in exchange for "voting for any particular person," Cal.Elec.Code § 18521 (West 1995), it appears clear from a plain reading of AS 15.56.030(a)(2) that the prohibition against inducing a person to "vote for or refrain from voting for a candidate" under AS 15.56.030(a)(2) has an identical meaning. Thus, to show that the Borough's transportation assistance program violated AS 15.56.030(a)(2), Contestants must demonstrate that the Borough paid voters and did so with an intent to induce voters to vote for or refrain from voting for a particular candidate. a. Payment for voting Contestants argue that this case is analogous to United States v. Garcia, 719 F.2d 99 (5th Cir.1983), where the court held that 42 U.S.C. § 1973i(c) prohibits not only paying a voter in cash, but also offering any item of value, such as a welfare food voucher, in exchange for a vote. Id. at 101-02. The State and Borough argue that Garcia and similar cases are inapposite. They argue that programs with the primary goal of assisting voters in reaching the polls have long been upheld against challenges that such assistance constitutes a payment to vote. In United States v. Lewin, 467 F.2d 1132, 1136 (7th Cir.1972), the court classified providing transportation to the polls as "assistance rendered by civic groups to prospective voters," rather than payment, and held that § 1973i(c) does not proscribe "efforts by civic groups or employers to encourage people to register." The United States Department of Justice appears to agree with this analysis. [T]he concept of "payment" does not reach things such as rides to the polls or time off from work which are given to make it easier for those who have decided to vote to cast their ballots. Such "facilitation payments" are to be distinguished from gifts made personally to prospective voters for the specific purpose of stimulating or influencing the more fundamental decision to participate in an election. Craig C. Donsanto, Federal Prosecution of Election Offenses 18 (5th ed. 1988). The distinction between "facilitative" programs and "gift" programs seems based in part on historical factors which preceded the passage of most voting rights legislation. See Day-Brite Lighting v. State of Missouri, 342 U.S. 421, 424-25, 72 S.Ct. 405, 407-08, 96 L.Ed. 469 (1952) (upholding state law requiring employer to allow employees four hours of paid leave on election day in order to vote); 111 Cong.Rec.S. 8986 (daily ed. April 29, 1965) (Section 1973i(e) does not prohibit the "practice that has been recognized and has been accepted by both political parties and all organizations with respect to helping to transport people who do not have means of transportation to the polls in order to cast their ballots"). See also Parsley v. Cassady, 300 Ky. 603, 189 S.W.2d 947, 948 (1945) (upholding candidates' contribution of cars and trucks to assist in voter transportation as reasonable due to bad roads and wartime exigencies); Watkins v. Holbrook, 311 Ky. 236, 223 S.W.2d 903, 903-04 (1949) (upholding disbursement of money to provide for transport to polls to "get out the vote"). Perhaps more importantly, this distinction reflects the difficulty in balancing the need to minimize undue pecuniary influence in elections with the desire to encourage and facilitate maximum political participation. The State and Borough argue that the transportation program is a valid balancing of these two factors, while Contestants argue that the program is an invalid form of vote solicitation. The North Slope Borough comprises 89,-000 square miles and is inhabited by 5,760 people. The majority of these people are regularly involved in subsistence activities. The Borough's limited road system makes it difficult for residents in remote areas to reach voting facilities. In some cases, snowmobile or all-terrain vehicles are the only available modes of transportation. Fuel is especially expensive in the Borough, and because many residents do not participate fully in the cash economy, a fuel expenditure may be still more costly. The Borough argues that many individuals who would like to vote will be deterred by the limited access to roads and the cost of transportation in the Borough. Thus, a transportation assistance program would clearly facilitate voting in the Borough. However, the Borough argues, the sorts of transportation programs already permitted in many other states, in which volunteers car-pool or bus voters to voting stations, would not be feasible in the Borough because of the limited road access and the distances involved. The Borough claims its program is "more feasible and much cheaper" because it allows individual voters to provide their own transportation to the polls and then be reimbursed for the cost of fuel used by the voter to reach the polls. When the Borough began developing this program, Special Counsel to the Mayor contacted the Election Crimes Branch of the United States Department of Justice to ascertain whether the program might violate 42 U.S.C. § 1973i(e). The Borough described its proposed program as follows: "[t]he plan is to offer up to 10 gallons of gasoline to each voter who requests it. The gasoline will help cover these individuals' travel costs between town and their hunting, fishing, whaling or other sites. Each voter will swear or affirm to their need for the fuel to cover transportation costs on the application for fuel." The Borough explained that the assistance would not be payment because (1) the Borough's sole purpose was to facilitate voters reaching the polls or the registrar's office; (2) the transportation norms in the contiguous United States do not apply because of the lack of roads; (8) the large amount of off-road travel in the region removes many citizens from access to registrars and voting polls; and (4) the lack of telephones or other methods of communication with subsistence or other sites located outside of Borough communities makes offering a "ride to the polls" impractical. The Election Crimes Branch responded with an informal opinion stating that "the outreach program as described in your letter in our opinion is clearly lawful under 42 U.S.C. § 1973i(c)." The Election Crimes Branch stated that its understanding was that the offer "would be made only to individual Native Americans who are on active hunting status — or who are otherwise located in extremely remote areas of the North Slope Borough." Its response further stated that [w]e assume for the purposes of this letter that these offers of gasoline will be made in a completely politically neutral manner; that they will not be connected in any way with specific candidates or political organizations; that they will be available to all individual Native Americans whose physical location satisfies the eligibility criteria describe® in your letter; . and that the gas provided will not exceed that needed to transport the individual in question from his or her hunting camp to the nearest registration or polling site. Its response concluded, "[i]n sum, the gasoline offer describe® in your letter, and as amplified by the assumptions summarized above, is functionally similar to an offer of [a] ride to the polls in jurisdictions that have roads and geographically concise populations." Contestants argue that the Borough conducted the program "directly contrary to the advice and warnings" of the Election Crimes Branch by allowing participation by voters who did not meet the criteria set forth in the response, and by allowing many people to claim more gas than they actually used, resulting in a net pecuniary gain. Although Contestants presented no evidence that any particular voter actually received more fuel than necessary to reach the polls, they presented evidence that this was the likely result of the Borough's program. The 847 vouchers put into evidence by Contestants reveal that fewer than ten voters signed for less than ten gallons of gasoline. Contestants provided evidence suggesting that most Borough residents lived in communities no farther than twelve miles from the polls and thus lived too close to the polls to require ten gallons of gasoline for transportation on election day. Contestants also provided evidence that there may have been little significant subsistence activity on November 8 and further, that the Borough might not have taken adequate steps to ensure that voters did not receive more fuel than was necessary for transportation to the polls. Thus, construing the facts in the light most favorable to the nonmoving party, we hold that a factfinder could conclude that the Borough's program paid voters to vote. See Clabaugh v. Bottcher, 545 P.2d 172, 175 n. 5 (Alaska 1976) (in ruling on a motion for summary judgment the court must draw all reasonable inferences in favor of the nonmoving party). b. Intent to induce a 'person to vote for a candidate As noted above, the Borough's program did not violate Alaska's election laws unless the payment to vote was made with the intent to induce a person to vote for or refrain from voting for a candidate. AS 15.56.030(a)(2). Contestants argue that the program is illegal because the Borough offered something of value in exchange for getting out the vote with the expectation that an increase in voter turnout meant an increase in votes for the Democratic candidate for governor, Tony Knowles. Contestants offered an affidavit in which Thomas North-cott affied that several months after the election, a Borough executive boasted about the high voter turnout in the area, and stated that the incentive behind the gas for votes program was to get Tony Knowles elected. In reviewing the summary judgments entered against the Contestants, the court must draw all reasonable inferences in favor of the Contestants. The parties do not dispute that AS 15.56.030(a)(2) prohibits giving money or other valuable thing with an intention to persuade a person to vote for a candidate. (Because offering to give money or an other valuable thing can also violate AS 15.56.030(a)(2), we need not distinguish between the Borough's offer and its delivery of valuable vouchers to voters.) The averments in Northcott's affidavit would support a finding that the Borough, acting through its officials, intended the program to increase the number of votes cast for Candidate Knowles. Consequently, the question we must answer is whether AS 15.56.030(a)(2) prohibits a candidate-neutral program which gives or offers to give a thing of value in a manner that encourages persons who might otherwise not have voted to go to the polls and east their votes for candidates for whom they were already inclined to vote. We give the language of AS 15.56.030 its ordinary meaning when interpreting the statute because the language has not acquired a peculiar meaning through statutory definition or previous judicial construction. Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1201 (Alaska 1989); Wilson v. Municipality of Anchorage, 669 P.2d 569, 572 (Alaska 1983). Alaska Statute 15.56.030(a)(2) prohibits offering a thing of value to a person "with the intent to induce the person to vote for" a candidate. The most common legal definition of "induce" is "to lead on, to influence, to prevail on, to move by persuasion or influence, to bring on or about, to effect, to cause." See Commonwealth v. Mason, 381 Pa. 309, 112 A.2d 174, 176 (1955) (defining "induce" as "to lead on; to influence; to prevail on; to move on by persuasion or influence .; to bring on or about; to effect; to cause."); People v. Drake, 151 Cal.App.2d 28, 310 P.2d 997, 1003 (1957) (using same definition); La Page v. United States, 146 F.2d 536, 538 n. 2 (8th Cir.1945) (using same definition as Drake); State v. Cook, 139 Ariz. 406, 678 P.2d 987, 989 (1984) (the generally accepted meaning of "induce" is, "to lead on; to move by persuasion or influence"); Black's Law Dictionary 775 (6th ed. 1990) ("To bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on"); Webster's New Collegiate Dictionary 587 (1974) ("to lead on: move by persuasion or influence;" "to call forth or bring about by influence or stimulation"). These definitions connote an alteration of a person's previous inclination. The terms "induce" and "inducement" appear to have been used most frequently in criminal law, especially in entrapment cases. This usage clearly indicates that inducement requires altering a person's disposition to act in a certain way. See, e.g., State v. Hansen, 69 Wash.App. 750, 850 P.2d 571, 579 n. 9 (1993), reversed on other grounds, State v. Stegall, 124 Wash.2d 719, 881 P.2d 979 (1994) ("inducement" such as might support entrapment defense, "is government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen will commit offense"); United States v. Salmon, 948 F.2d 776, 779 (D.C.Cir.1991) ("Inducement is government behavior that would 'cause[ ] an unpredisposed person to commit a crime.'") (citation omitted). In Oregon Republican Party v. State of Oregon, 78 Or.App. 601, 717 P.2d 1206, 1208, remanded for dismissal as moot, 301 Or. 437, 722 P.2d 1237 (1986), the court held that providing postage-paid envelopes which recipients could use to return requests for absentee ballots to the Republican Party's headquarters, did not constitute an inducement to vote under O.R.S. 260.665(2)(a). That statute prohibits inducing a person to register to vote. The court reasoned that because "[i]ndueement implies the promise of an advantage as a result of performing the desired act," the advantage offered must have an independent value to the voter. Id. Without an independent value in exchange for the performance of the act, the thing offered did not induce the act of registering, but rather facilitated registration. Id. Applying the Oregon court's definition of inducement to this ease, to prevail here Contestants must show that something of independent value — gasoline—was offered to encourage voters to east their ballots for a candidate they would not otherwise have selected. It is insufficient that something of value was offered in exchange for inducing voting per se, because under Alaska law it is legal to compensate a person for voting per se. Unless improperly influenced, voters will cast their ballots in accordance with their own criteria. No doubt voters are influenced by such legitimate criteria as their own socioeconomic status and community values. Thus, residents of any given community may naturally tend to favor a particular candidate. Persons whose votes are facilitated by candidate-neutral transportation assistance programs will likely vote for the same candidates they would have favored if they had reached the polls without assistance. Potential voters who could benefit from transportation assistance may share beliefs or values which tend to favor a particular candidate. It is not surprising that some candidates or organizations employ transportation assistance programs to target persons of a particular socio-economic status or party registration, just as other candidates or organizations may employ other programs, such as absentee ballot assistance, hoping to maximize participation of voters thought more likely to favor those candidates. See Oregon Republican Party, 717 P.2d at 1208 (discussing Republican Party mailing of absentee ballots with postage pre-paid envelope). When voting, a person must choose one candidate over others. Thus, if the phrase "intent to induce to vote for or refrain from voting for a candidate" in AS 15.56.030 is not read to require an intent to persuade voters to choose candidates for whom they would not otherwise have voted, that statute would have to be construed as prohibiting payments for voting per se. As discussed previously, such a reading of the statute would conflict with its plain language. There are many policy arguments for and against the "commercialization" of votes. See, e.g., Day-Brite Lighting, 342 U.S. at 428, 72 S.Ct. at 409 (Jackson, J., dissenting) (disagreeing with upholding state statutes which require employers to give employees two hours paid leave in order to vote and disapproving of "state-imposed pay-for-voting system[s]"); Pamela S. Karlan, Not by Money but by Virtue Won? Vote Trafficking and the Voting Rights System, 80 Va. L.Rev. 1455 (1994) (discussing dangers to the polity, especially to economically disadvantaged subsets, of vote-buying schemes and contrasting these schemes with voting incentive programs). These policy arguments have already been resolved in Alaska. The election practice statutes enacted by the Alaska Legislature do not proscribe voter incentive programs which involve compensation for voting, even if the sponsor of a program intends and expects that the program will benefit a particular candidate; they only prohibit payments intended to induce, i.e., influence or persuade, persons to vote in a different manner than they would have otherwise. It is not for the courts to second-guess this permissible legislative choice. Applying that choice to the record before us, we find no evidence which would permit a reasonable inference that the persons responsible for the Borough's trans portation assistance program intended to induce voters to vote in a particular manner. Most significantly, there was no evidence the program as conducted was not candidate-neutral. Evidence that persons responsible for the' program, by encouraging eligible citizens to vote, intended that the program would result in a net gain of votes for Candidate Knowles would be insufficient to prove a violation of AS 15.56.030(a)(2). As written, the statute does not prohibit payment to induce persons to vote who would not otherwise vote, so long as they are not induced to vote in a particular manner. If a program is candidate-neutral in fact, we must presume voters, in the sanctity of the voting booth, will vote as they would have had they made their ways to the polls without assistance or inducement. 2. The alleged violation of federal election law is not grounds for contest under AS 15.20.5⅛0 Contestants assert that they can challenge the election under AS 15.20.540 because the Borough's program violated federal law. Although a candidate-neutral program which offers compensation to encourage voting per se does not violate Alaska law, it appears to violate federal election law. See 42 U.S.C. § 1973i(c), supra note 8. That does not necessarily mean, however, that a given federal violation is ground for an Alaskan election contest. The State and the Borough argue that the Alaska and federal election statutes do not make the violation of a federal criminal election statute a basis for invalidating an election. The State notes that election contests based on the acts of third parties must show that the third party committed a "corrupt practice" as "defined by law." AS 15.20.540(3). The State argues that the Alaska Legislature has expressly defined specific acts as "corrupt practices," because it included the phrase "violation of this section is a corrupt practice" in particular election statutes. See, e.g., AS 15.56.010(b); AS 15.56.030(b); AS 15.56.035(b). The State reasons that given the legislature's careful attention to this classification, it clearly did not designate the violation of federal criminal election law as a corrupt practice. Contestants do not respond to these assertions. It would be inconsistent for the legislature not to prohibit candidate-neutral payments made to encourage voting, see supra, discussion of AS 15.56.030(a)(2), yet to regard such payments as a "corrupt practice" sufficient to set aside an election, whether or not they violated federal law. It is also unlikely the legislature would have considered acts violating federal election law, but not Alaska's election statutes, to be "corrupt practices as defined by law," given that the federal election statutes do not use that phrase. The absence of that phrase or some close equivalent in the federal election statutes tends to confirm that the Alaska Legislature did not intend that AS 15.20.540(3) election contests could be based on acts that violated federal, but not Alaska, election statutes. We hold that an alleged violation of a federal election statute by a third party is not an independent ground for an election contest under AS 15.20.540(3). A violation of 42 U.S.C. § 1973i(c) by a person other than an election official can be ground for an election contest under AS 15.20.540(3) only if the violation is also a "corrupt practice" as defined by Alaska election law. B. Postcard Mailed to Doyon Shareholders The Tanana Chiefs Conference, Doyon, Limited and the Fairbanks Native Association (TCC/Doyon/FNA) mailed a postcard to Doyon shareholders before the election. One side of the postcard offered to persons who submitted an entry on the 1994 ballot stub, or similarly-sized piece of paper, an opportunity to participate in a drawing for one thousand dollars in cash. Participants had to submit entries to their tribal counsel office by noon the day after the election. Neither TCC, Doyon, nor FNA endorsed any candidate for governor in the November 8 general election. However, the other side of the postcard encouraged Native Alaskans to vote. This side stated that "it is very important " to vote and that "one vote does make a difference." It asked people to encourage their friends and relatives to vote in the general election. The following statement was centered on this side of the postcard: "At this year's Alaska Federation of Natives convention, Native delegates from across Alaska overwhelmingly endorsed Tony Knowles for governor." Contestants argue that the postcard and the drawing it advertised violated Alaska election law. 1. Absence of language required by statute Contestants argue that the postcard violates Alaska election law because it did not bear the words "paid for by," as required by AS 15.56.010. The State argues that the postcard satisfies the purpose of AS 15.56.010 and that its distribution should thus not be considered a "corrupt practice" under AS 15.20.540. Because the postcard was distributed by persons other than election officials, Contestants must demonstrate that its distribution was a "corrupt practice," not simply "malcon-duct." AS 15.20.540(1) & (3). We first consider the significance of the omission of the information required by AS 15.56.010. This court has held that the term "malconduct" as used in AS 15.20.540 means a "significant deviation from statutorily or constitutionally prescribed norms." Hammond v. Hickel, 588 P.2d 256, 258 (Alaska 1978) (citing Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972)). Although Hammond v. Hickel involved claims of official malconduct rather than third-party corruption, given our prior holding that election statutes will be liberally construed to uphold the will of the electorate, Carr v. Thomas, 586 P.2d 622, 626 n. 11 (Alaska 1978), we choose to apply Hammond's requirement of a significant deviation from statutory norms to all grounds for an election contest under AS 15.20.540. In this case, assuming the language of the postcard was "intended to influence the election of a candidate," no significant statutory deviation occurred. AS 15.56.010(a)(2). The statute presumably requires that the postcard bear the words "paid for by" and the sponsor's name and return address. However, the postcard identified its source, and also identified the Alaska Federation of Natives (AFN) as a supporter of Candidate Knowles. Thus, the apparent purpose of AS 15.56.010 — to promote an informed electorate and to allow voters to evaluate the solicitations they receive—was substantially met. Cf. Messerli v. State, 626 P.2d 81, 87 (Alaska 1980) ("Identification of the source of advertising may be required as a means of disclosure, so that the people mil be able to evaluate the arguments to which they are being subjected.") (quoting First National Bank v. Bellotti, 435 U.S. 765, 792 n. 32, 98 S.Ct. 1407, 1424 n. 32, 55 L.Ed.2d 707 (1978)). Since distribution of the postcard did not significantly frustrate the purposes of AS 15.56.010, it cannot be said that the deviation from that statute was a "corrupt practice . sufficient to change the results of the election" for the purposes of AS 15.20.540. Even assuming the deviation was sufficient to support a misdemeanor charge of violating AS 15.56.010, we hold that a technical failure to comply strictly with that statute is not sufficient to invalidate ballots where the purpose of the statute has been satisfied. See Carr, 586 P.2d at 625-26 (citing the "well-established policy which favors upholding of elections when technical errors . do not affect the result of an election," and recognizing that courts are reluctant to permit a wholesale disfranchisement of qualified voters where a reasonable construction of the statute can avoid such a result). Consequently the failure to indicate on the postcard who paid for it is not ground for an election contest under AS 15.20.540(3) in this case. 2. Legality of postcard mailing We must next consider whether mailing the postcards was a corrupt practice on the theory that the postcards offered something of value and were distributed with an intent to influence the way voters cast their ballots, in violation of AS 15.56.030. In response the State asserts that the drawing cannot have violated AS 15.56.030 because not only was participation in the drawing not contingent on a vote for Candidate Knowles, but drawing participants were not required to vote at all. The State reasons that because it was not necessary to vote to enter the drawing, entry in the drawing cannot be construed as a payment in exchange for the participant's vote. The trial court held that distributing the postcard "did not constitute a corrupt practice," and granted partial summary judgment to the State on that issue. Insofar as is pertinent here, AS 15.56.030(a)(2) is violated when a person "[1] offers . [2] money or other valuable thing [3] to a person [4] with the intent to induce the person to vote for or refrain from voting for a candidate_" By prominently mentioning the AFN's endorsement of Candidate Knowles, the postcard potentially encouraged recipients to vote for a particular candidate. This facially non-neutral message is evidence of an intent to induce persons to vote for a person they might not otherwise have favored. This non-neutral message distinguishes it from the North Slope Borough's transportation assistance program. The drawing offer conse quently comes closer to offering a thing of value, a chance to win one thousand dollars, to encourage a vote for a particular candidate. We hold that the drawing offer potentially violated AS 15.56.030(a)(2), because it was accompanied by a non-neutral message. Given that message and the State's failure to demonstrate that there was no intention to induce voters to vote for a particular candidate, the trial court could not say as a matter of law that the mailing did not violate AS 15.56.030(a)(2). The issue consequently could not be resolved on summary judgment. 3. Effect of postcard on election We next consider whether the State was-entitled to summary judgment on the alternative theory that the postcard did not affect the outcome of the election. See Wright v. State, 824 P.2d 718, 720 (Alaska 1992) (holding that "this court is not bound by the reasoning articulated by the trial court and can affirm a grant of summary judgment on alternative grounds"). The trial court did not reach this issue, having held as a matter of law that the postcard did not constitute a corrupt practice. We conclude that the record does not permit us to uphold the summary judgment on this alternative ground. Assuming the TCC/Doyon/FNA drawing solicitation violated AS 15.56.030, to prevail at trial Contestants would have to show that the violation was of a magnitude "sufficient to change the results of the election." See AS 15.20.540(3); Boucher, 495 P.2d at 80. Contestants moved for summary judgment, and argued in support that mailing the postcards to "thousands of individuals is sufficient to permeate the entire election with misconduct_" Contestants did not then or later offer any evidence that the mailing affected the outcome of the election. In opposing Contestants' motion for summary judgment and cross-moving for summary judgment, the State offered evidence that fewer voters, and a lower percentage of the registered voters, cast ballots in House District 36, the Rural Interior District, in the 1994 general election than in the 1992 general election. The State offered the affidavit of a State labor economist who affied that "[t]he Alaska Native population of House District 36 includes American Indians in the Doyon Alaska Native Regional Corporation (ANRC) region of the interior, as well as Eskimos of the Calista ANRC Region." The economist identified other House Districts with other regional corporations. The State also offered the affidavit of TCC's general counsel. He affied that TCC is a "consortium of Interior Native villages and associations, and [is] the sponsoring regional organization under the Alaska Native Claims Settlement Act" for Doyon, whose shareholders and their descendants are Native members of the TCC member villages and associations. From this evidence, the State argued in support of its cross-motion that "District 36 includes the Doyon region of the Interior" and that many of the voters participating in the drawing voted in District 36. It argued that this information established that the drawing did not affect the election outcome. Contestants have produced no evidence that the drawing solicitation influenced enough votes to change the outcome of the election. They simply assert that if the votes of all postcard recipients were awarded to Candidate Campbell, the result of the election would be changed. Although Contestants asserted in their opening appellate brief that the number of voters who received postcards can be determined exactly, so far as the record reveals, Contestants never conducted the discovery or analysis necessary to count the postcard recipients who voted and the record permits no inference about how many postcard recipients or drawing participants voted. Contestants candidly stated during oral argument before us that the record contains no evidence about how many people participated in the drawing. No evidence in the record permits an inference that the drawing actually affected the ballot cast by even one person who received a postcard. Likewise, no evidence in the record permits an inference about how many, if any, ballots were cast for Candidate Knowles or any other candidate as a result of the postcard mailing. The Contestants' failure to produce any such evidence, however, is not necessarily determinative of this issue, because we must here decide whether summary judgment should have been granted to the State over the Contestants' arguments that there were genuine fact disputes about the effect of the postcard on the election. In accordance with the principles now governing summary judgment in Alaska, the State, as the cross-movant seeking summary judgment, had the initial burden of making a prima facie showing that the postcard mailing did not affect the election. See Yurioff v. American Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990); Bauman v. State, Div. of Family and Youth Svcs., 768 P.2d 1097, 1099 (Alaska 1989) ("[T]he proponent of a summary judgment motion has the initial burden of establishing the absence of genuine issues of material fact and his or her right to judgment as a matter of law."). See also Alaska R.Civ.P. 56. The facts submitted by the State in support of its cross-motion were relevant, and would, if unexplained and unrebutted, tend to support an inference the mailing did not increase the voter turnout, and therefore did not affect the election results. Nonetheless, the facts produced by the State did not amount to a prima facie showing that the alleged violation did not affect the election outcome. Simply showing that fewer District 36 voters participated in the general election in 1994 than in 1992 was insufficient because the State offered no evidence that turnouts in the two elections could be compared directly or that no other, independent circumstances may have depressed the District 36 turnout in 1994 or increased it in 1992. It offered no evidence about how many Doyon shareholders were registered voters in District 36, or how many Doyon shareholders voted in either election in that or any other district. Furthermore, the figures offered by the State indicated that the percentage of District 36 registered voters who voted in 1992 was lower than the statewide average that year, but that the percentage turnout there in 1994 was higher than the 1994 statewide average, a phenomenon that may undercut the State's assertion that the postcard did not influence the turnout in that district. The State's own evidence did not require a conclusion that the postcard did not influence the election outcome. Moreover, the State's showing was not un-rebutted. Contestants offered an affidavit executed by a person identified on Contestants' witness list as an expert in Alaska elections. He affied that the 1994 voter turnout should be compared to the turnout in 1990, since both were non-presidential election years. That opinion was sufficient to cast into doubt any direct comparison of voter participation in 1992 and 1994. In a statement of genuine issues, Contestants asserted that mailing the postcards was a "corrupt practice" and that "corrupt practices" of TCC, FNA, and Doyon "injected extensive bias into the results of the 1994 governors [sic] election." They asserted the cash drawing introduced sufficient corrupt practices into the election through extensive bias that "it could and probably would change the result of the election if eliminated." They also asserted that the corrupt practices "have introduced extensive bias into the 1994 governors [sic] election that requires a new election for the governor of Alaska." We have stated that "every reasonable presumption will be indulged in favor of the validity of an election." Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963). See also Hammond, 588 P.2d at 260 (although malconduct may have impeached integrity of election process and placed true outcome "in doubt," malconduct not sufficient grounds for new election where more concrete standards do not indicate that the votes affected are sufficient to change the result of the election); Boucher, 495 P.2d at 86 n. 20 ("The presumption of validity given to elections and the diffidence with which the court attacks the results thereof places a heavy burden on the trial judge."); Dale v. Greater Anchorage Area Borough, 439 P.2d 790, 792 (Alaska 1968) (election contestant must strictly observe contest procedures because public policy demands that election results have stability and finality). Given our conclusion that it was error to grant summary judgment to the State on the issue of whether the postcard violated AS 15.56.030, we could affirm this portion of the summary judgment only if we could conclude that the State made out a prima facie showing that any violation was not of sufficient magnitude to affect the election result. Because the State, as the movant, did not make that showing, it did not establish that it was entitled to judgment as a matter of law and did not establish the absence of any genuine issue of material fact. It was not entitled to summary judgment on this issue, and we cannot affirm the judgment on this alternative ground on the basis of the record before us. C. Prudhoe Bay Absentee Voting Station The State decided in August 1994 to close the Prudhoe Bay absentee voting station, citing a decrease in transient population which no longer justified the cost of sending election workers to Prudhoe Bay and renting space to operate the absentee voting station. The State requested preclearance from the United States Department of Justice Civil Rights Division before it closed the absentee voting station. The Department of Justice replied that it had no objections to the closure. The State notified the oil extraction employers in the area that the station would be closed and trained these employers to assist voters in registering and distributing absentee ballot applications. The day before the November 8 election, the Director of Elections decided to open the Prudhoe Bay absentee voting station after receiving several phone calls requesting that it be opened. The Director of Elections sent two election workers to the voting station on election day. The Division originally intended that the voting station would operate on November 8 until 5:00 p.m., but at 4:30 p.m., after consulting with the Division of Elections, the on-site election workers decided to extend the voting station's hours until 8:00 p.m. to accommodate voters who had been waiting in a two to three hour waiting line. Approximately seventy-five people voted at the voting station between 5:00 p.m. and 8:00 p.m., and the wait was reduced significantly by 7:30 p.m. A total of 308 people voted at the station. Contestants argue that the Division of Elections' last minute decision to open the station "created a two to three hour waiting period," raising a question of "how many Prudhoe Bay workers wanted to vote but did not vote or could not vote due to the unreasonable wait imposed by the State." Contestants offer no evidence that voters could not vote because of the long wait, but do provide affidavits of two Prudhoe Bay workers who affied that they did not vote because they were unwilling to endure the hours-long waiting period. The State argues that the Director of Elections is given the authority to designate and supervise voting stations and that the Director properly exercised this discretion both in deciding to close the Prudhoe Bay station and in directing the station's operation on election day. We have never held that an "unreasonable" wait at an absentee voting station, in itself, can be considered election malcon-duct. Nor do Contestants cite any cases to support this proposition. Moreover, it does not appear that the wait at the absentee voting station resulted from a lack of training or from the fact that the Director of Elections' decision to reopen the absentee voting station was made at the "last minute," or that it was otherwise "unreasonable." The Director of Elections was not required to reopen the absentee voting station at Pru-dhoe Bay. AS 15.20.045(b). As noted above, the State had decided to close the Prudhoe Bay voting station before the August primary and had trained Prudhoe Bay employers to assist voters in registering and distributing absentee ballot applications. The affidavit of Mark Humphrey, submitted by Contestants, provides evidence that voters at Prudhoe Bay were aware that the Director of Elections had previously decided not to operate the Prudhoe Bay absentee voting station. Contestants do not allege that any voter was unable to obtain, complete, or return absentee ballots by mail before the election. The State made considerable efforts to insure that Prudhoe Bay voters were aware well before election day that they would need to vote by mail. The State offered evidence that decisions of the Division of Elections to reverse its original course and open the absentee voting station, and then to extend the station's hours, were made in good faith and were intended to accommodate, and in fact did accommodate, voters who would not have been able to vote because they had failed to return absentee ballots by mail. AS 15.20.081. Contestants have offered no facts creating a genuine fact dispute about those matters. Furthermore, although the decision to open the station was made only the day before the election, Contestants do not allege that an earlier decision would have alleviated the wait on election day. Nor is there any evidence that the election workers were inadequately trained or unable to perform their duties. To the contrary, one of the employers which had requested that the absentee voting station be opened wrote to the Division of Elections commending the election workers. The letter noted the hard work of the Division staff, and thanked the Division for setting up the voting station on such short notice. The employer stated that "everyone I spoke with was happy they were able to vote." In the context of an absentee voting station and under the facts presented by both parties, the good-faith operation of the Pru-dhoe Bay station is not malconduct even though voters had a long wait. See Hammond v. Hickel, 588 P.2d at 259 ("evidence of an election official's good faith may preclude a finding of malconduct under certain circumstances") (citing Turkington, 380 P.2d at 595). IV. CONCLUSION We hold that the Borough's transportation assistance program did not violate AS 15.56.030(a)(2). We further hold that it was eiTor to grant summary judgment to the State on Contestants' claim that the distribution of the postcard to Doyon shareholders was a corrupt practice under Alaska's election laws. We decline to affirm the summary judgment on that claim on an alternative theory that the postcard did not alter the outcome of the election since the State failed to meet its burden of proof on this issue. Finally, we hold that the State's operation of the Prudhoe Bay voting station did not constitute election malconduct. We consequently REVERSE that portion of the summary judgment dismissing Contestants' claim regarding the postcard sent to Doyon shareholders. This issue is remanded for further proceedings not inconsistent with this opinion. We AFFIRM that portion of the summary judgment dismissing all other claims asserted by Contestants. . The Contestants included as defendants: the State of Alaska; John B. "Jack" Coghill, former Lieutenant Governor; and Joseph L. Swanson, the Director of the Alaska Division of Elections under Governor Walter J. Hickel (collectively "State"). In accordance with Alaska Civil Rule 25(d), the current Lieutenant Governor and the Acting Director of the Division of Elections, Fran Ulmer and David Koivuniemi respectively, were substituted as defendants. A recount requested by gubernatorial Candidate James O. Campbell was completed on December 3, 1994; it determined that Tony Knowles was elected by a margin of 536 votes. Candidate Campbell is not one of the Contestants. Although given an opportunity to do so. Contestants never moved for a preliminary injunction, and conceded that Candidate Knowles was capable of governing the State until there could be a new election. . Contéstants also argue that the State committed election malconduct by "disenfranchising" voters through its treatment of absentee ballots and residency disputes in the state Senate race for District J in Anchorage. All but forty of the disputed District J votes were counted in the race for governor. Contestants offer no evidence that substantiates a challenge to the determination regarding the forty ballots, nor do they offer any evidence that the alleged malconduct regarding these forty ballots would have been sufficient to change the outcome of the gubernatorial election. Because the gubernatorial election is the only race challenged by Contestants, we need not consider any alleged malconduct which did not affect the gubernatorial election. . AS 15.20.540 provides: Grounds for election contest. A defeated candidate or 10 qualified voters may contest the nomination or electioh of any person or the approval or rejection of any question or proposition upon one or more of the following grounds: (1) malconduct, fraud, or corruption on the part of an election official sufficient to change the result of the election; (2) when the person certified as elected or nominated is not qualified as required by law; (3) any corrupt practice as defined by law sufficient to change the results of the election. .When reviewing a grant of summary judgment, we must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). If the superior court's order granting summary judgment does not set out the court's reasoning, we presume that the superior court ruled in favor of the movant on all issues. Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 787 (Alaska 1993). . AS 15.56.030 provides in pertinent part: (a) A person commits the crime of unlawful interference with voting in the first degree if the person (2) gives, promises to give, offers, or causes to be given or offered money or other valuable thing to a person with the intent to induce the person to vote for or refrain from voting for a candidate at an election or for an election proposition or question . (b) Violation of this section is a corrupt practice. (c) Unlawful interference in the first degree is a class C felony. Contestants also allege that the program violates AS 15.56.020, which pertains to campaign misconduct in the second degree. However, Contestants have not alleged facts which would support this claim. Nor have they briefed this issue either before the superior court or this court. The argument is thus waived. Wirum & Cash Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992). . The record establishes that the market price of ten gallons of gasoline in Barrow was approximately twenty-seven dollars on November 8, 1994. . Cal.Elec.Code § 18521 (West 1995) provides in relevant part: A person shall not directly or through any other person receive, agree, or contract for, before, during or after an election, any money, gift, loan, or other valuable consideration, office, place or employment for himself or any other person because he or any other person: (a) Voted, agreed to vote, refrained from voting, or agreed to refrain from voting for any particular person or measure. (b) Remained away from the polls. (c) Refrained or agreed to refrain from voting. (d) Induced any other person to: (1) Remain away from the polls. (2) Refrain from voting. (3) Vote or refrain from voting for any particular person or measure. Section 18522 provides in relevant part: Neither a person nor a controlled committee shall directly or through any other person or controlled committee pay, lend, or contribute, or offer or promise to pay, lend, or contribute, any money or other valuable consideration to or for any voter or to or for any other person to: (a) Induce any voter to: (1) Refrain from voting at any election. (2) Vote or refrain from voting at an election for any particular person or measure. (3) Remain away from the polls at an election. ' (b) Reward any voter for having: (1) Refrained from voting. (2) Voted for any particular person or measure. (3) Refrained from voting for any particular person or measure. (4) Remained away from the polls at an election. . 42 U.S.C. § 1973i(c) provides in pertinent part: Whoever knowingly or willfully . pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years or both.... . See United States v. Saenz, 747 F.2d 930, 934 (5th Cir.1984) (prospective voters offered welfare vouchers in exchange for voting for defendant); United States v. Thompson, 615 F.2d 329, 330-31 (5th Cir.1980), cert. denied, Solis v. United States, 473 U.S. 906, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985) (defendant candidate for sheriff bought votes with liquor and cash and accompanied voters into booth to insure compliance). . The Borough's program as implemented was not limited to Native Americans, nor could it have been so limited consistent with the requirements of the Fourteenth Amendment to the United States Constitution, or the Equal Rights Clause of article I, section 1 of the Constitution of Alaska. . The record reflects three other programs that offered potentially valuable consideration to persons who voted in the 1994 election. A private travel agent in Fairbanks gave $40 air fare discounts to 120-25 customers presenting a 1994 ballot stub on November 8 or 9, 1994. The Anchorage Chamber of Commerce offered a drawing for various prizes, including two round trip tickets, to persons submitting their ballot stubs; approximately 4,415 people entered that drawing. The Municipality of Anchorage People Mover bus system accepted an unknown number of riders' ballot stubs the day after the election in exchange for trips of any length, all day. There is no indication in the record that any of those programs was not candidate-neutral. . Contestants also argue that there was election "malconduct" by State election officials under AS 15.20.540(1) because the Borough's program violated federal law and State officials approved that program. Having reviewed the record, we are persuaded that there is no genuine fact dispute, and that no State election official condoned or approved the program as it was actually conducted by the Borough. The trial court did not err in entering summary judgment against Contestants on this claim. . AS 15.56.010(a)(2) provides that "[a] person commits the crime of campaign misconduct in the first degree if the person": knowingly prints or publishes an advertisement, billboard, placard, poster, handbill, paid-for television or radio announcement or other communication intended to influence the election of a candidate or outcome of a ballot proposition or question without the words "paid for by" followed by the name and address of the candidate, group or individual paying for the advertising or communication. . . The State argues that AS 15.56.010 does not apply to the postcard because the postcard does not encourage voting for any particular candidate and because AS 15.56.010 does not apply to mailings from coiporations to their investors. It is unnecessary for us to address those two arguments because we hold that distributing the postcard in violation of AS 15.56.010 was not a "corrupt practice" under AS 15.20.540. Given our resolution of this issue, we do not find it necessary to consider whether, in light of McIntyre v. Ohio Elections Commission, — U.S. -, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (holding that an Ohio statute prohibiting distribution of anonymous campaign literature violated the First Amendment), AS 15.56.010 is valid. No party argues that it is not. . The dissenting opinion suggests that we should refuse to reach this issue, on the theory Contestants have not squarely argued in their brief that the mailing of the postcard was a corrupt practice under AS 15.56.030(a)(2). This court has discretion to reach an issue which has been inarticulately briefed by one party, especially where we, the trial court, and the opposing party have all been adequately notified that the matter is at issue on appeal. Ratcliff v. Security Nat'l Bank, 670 P.2d 1139, 1141 n. 4 (Alaska 1983). Contestants' complaint and statement of points on appeal raise the question of whether the Doy-on postcard violated AS 15.56.030. Contestants repeatedly invoke § .030; they twice quote § .030(a)(2) in their opening appellate brief. Contestants squarely argued that in the context of 42 U.S.C. § 1973i(c) the postcard offered something of value. In their memorandum opposing the State's cross-motion for summary judgment, Contestants argued that the postcard demonstrated an intent to encourage people to vote for a particular candidate. These are the two issues critical to determining whether distributing the postcard was a corrupt practice in violation of AS 15.56.030(a)(2). The State presented its position on § .030(a)(2) in its brief and memoranda before this court and the superior court. While such a relatively oblique discussion of an issue might not always be sufficient, under the facts of this case we find that Contestants adequately raised the question of whether mailing the postcards violated AS 15.56.030(a)(2). We would be remiss in failing to reach this issue, especially considering that if we do not, persons may needlessly violate the statute and jeopardize future elections. . Although the actual value of a chance to win one thousand dollars is potentially small, depending upon the number of drawing entrants, the perceived value of the chance to win a one thousand dollar drawing may be considerably higher in the eyes of potential participants. No party has argued that a chance to win one thousand dollars does not constitute an "other valuable thing" under AS 15.56.030(a)(2). Cf. Naron v. Prestage, 469 So.2d 83 (Miss.1985) (approving a candidate's cash drawing offer sent to registered voters). Given the State's failure to assert the existence of a genuine issue of material fact in response to Contestants' assertion (in the context of 42 U.S.C. § 1973i(c)) that the postcard offered something of value, we find the dissenting words of Chief Justice Patterson in Naron persuasive: In my opinion, the offer of a chance to win cash by pursuing the citizen's duty to vote is little different from an offer to pay cash, in whatever amount, for a citizen to vote. The hope of winning something for little, if any, cash outlay has great popular appeal as is established by the growing popularity of state lotteries for greater tax revenues. 469 So.2d at 88. There is no genuine dispute regarding the value of the offer the postcards transmitted in this case. We do not find it necessary to decide here whether an offer of participation in a cash-prize drawing is always an offer of an "other valuable thing" under AS 15.56.030(a)(2). . Contestants also allege that the postcard violated 42 U.S.C. § 1973i(c). As discussed in part A2, supra, violation of a federal election statute is not an independent ground for an election contest under AS 15.20.540(3). . AS 15.20.045(b) provides: The director may designate by regulation adopted under the Administrative Procedure Act (AS 44.62) locations at which absentee voting stations will be operated on election day and on other dates and at times to be designated by the director. The director shall supply absentee voting stations with ballots for all election districts in the state and shall designate absentee voting officials to serve at absentee voting stations.

10473436

CITY OF FAIRBANKS, a Municipal Corporation for the State of Alaska, Appellant, v. METRO COMPANY, a partnership consisting of Robert J. Mitchell, et al., Appellees; CITY OF FAIRBANKS, a Municipal Corporation for the State of Alaska, Appellant, v. VAN HORNE LODGE, INC., an Alaskan Corporation, and 20,300 Square Feet of Land, more or less, located in the Fairbanks North Star Borough, Appellees

City of Fairbanks v. Metro Co.

1975-10-02

No. 2504

1056

1059

540 P.2d 1056

540

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:20:29.736753+00:00

CAP

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

CITY OF FAIRBANKS, a Municipal Corporation for the State of Alaska, Appellant, v. METRO COMPANY, a partnership consisting of Robert J. Mitchell, et al., Appellees. CITY OF FAIRBANKS, a Municipal Corporation for the State of Alaska, Appellant, v. VAN HORNE LODGE, INC., an Alaskan Corporation, and 20,300 Square Feet of Land, more or less, located in the Fairbanks North Star Borough, Appellees.

CITY OF FAIRBANKS, a Municipal Corporation for the State of Alaska, Appellant, v. METRO COMPANY, a partnership consisting of Robert J. Mitchell, et al., Appellees. CITY OF FAIRBANKS, a Municipal Corporation for the State of Alaska, Appellant, v. VAN HORNE LODGE, INC., an Alaskan Corporation, and 20,300 Square Feet of Land, more or less, located in the Fairbanks North Star Borough, Appellees. No. 2504. Supreme Court of Alaska. Oct. 2, 1975. Frank Kernan, City Atty., Steven J. Call, Deputy City Atty., Fairbanks, for appellant. Peter J. Aschenbrenner, Fairbanks, for appellees. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, and BOOCHEVER, Justices.

1421

8681

OPINION ERWIN, Justice. This case involves an attempted condemnation of certain parcels of land by the City of Fairbanks for purposes of the construction of a sewer line. Although the trial court determined that the City has the statutory authority to exercise the power of eminent domain over the properties in question, it nevertheless denied the. petition for condemnation on the ground that the City had failed to sufficiently establish the necessity of the taking under AS 09.55.-270(2), The court subsequently denied the City's motion for reconsideration of its decision. In the recent case of Arco Pipeline Co. v. Stewart, 539 P.2d 64 (Alaska, 1975), this Court examined the nature of judicial review of the question of necessity in condemnation proceedings, and indicated that one seeking to show that a particular taking is excessive or arbitrary has a heavy burden of proof in the attempt to pursuade the court to substitute its judgment for that of the condemnor. We also intimated that although the condemnor may have the burden of making a prima facie showing of necessity, the language of AS 09.-55.270(2) ought to be construed to require no more than that the particular taking be shown to be "reasonably requisite and proper for the accomplishment of the purpose for which it is sought." We take this opportunity to announce the applicability of the analysis suggested in Arco to cases arising under AS 09.55.270(2). We hold today that in general condemnation proceedings under AS 09.55.-240-09.55.410, once the condemnor has presented sufficient evidence to support a finding that a particular taking is "reasonably requisite" for the effectuation of the authorized public purpose for which it is sought, particular questions as to the route, location, or amount of property to be taken are to be left to the sound discretion of the condemning authority absent a showing by clear and convincing evidence that such determinations are the product of fraud, caprice, or arbitrariness. Our review of the record in the instant case convinces us that the City clearly met its initial burden of demonstrating that its taking was reasonably necessary under the circumstances. Moreover, the evidence presented to the effect that the City's location of the sewer line on one side of the street as opposed to the other might entail higher acquisition and construction costs, and that a larger number of people were located on the other side by virtue of recent land development in the area, does not qualify as clear and convincing evidence that the City's determination was arbitrary or amounted to an abuse of discretion. While the property owners argue that their inability to hook up to the sewer line is a substantial consideration in evaluating the propriety of the actions of the City, we are not persuaded that this factor is of any great or overriding significance in light of the circumstances and the other evidence presented. While it is true that the inability of a particular condemnee to obtain immediate beneficial use from the project may be considered as a factor in weighing the project's impact in terms of the degree of private injury involved in a proposed route or location, the interest in minimizing private injury is not absolute and must always be weighed in relation to the goals and efficacy of the project in its entirety at the time such determinations are made. That certain property owners suffer relatively greater injury than others, or are less directly benefited by the project, does not establish that the taking of their property . is unnecessarily injurious or unwarranted. After reviewing the record before us, we are convinced that no such showing that the taking of the property is unnecessarily injurious or unwarranted was made here. The decision of the superior court is reversed and the case is remanded with instructions to enter an order in favor of the City of Fairbanks on the issue of necessity under AS 09.55.270(2). Reversed and remanded. BURKE, J., not participating. . AS 09.55.270 provides in part: Prerequisites. Before property can be taken, it shall appear that (2) the taking is necessary to the use; . Although the case was in fact concerned with review of determinations of necessity in condemnation proceedings under a declaration of taking, we alluded by way of comparison to the nature of such review in general proceedings in eminent domain. In so doing we recognized the precedential value of Montana case law on this point in noting that many of Alaska's general condemnation provisions — including, particularly, AS 09.55.-270 — were taken from Montana statutes. Arco Pipeline Co. v. Stewart, 539 P.2d 64, at 69 & n. 17, 70-71 (Alaska, 1975). . Id. at 71, where we quoted from State Highway Comm'n v. Crossen-Nissen Co., 145 Mont. 251, 400 P.2d 283, 285 (1965), for the proposition that such proof must be clear and convincing. . Id. at 71, quoting from State Highway Comm'n v. Crossen-Nissen Co., 400 P.2d at 284; accord, State Highway Comm'n v. Yost Farm Co., 142 Mont. 239, 384 P.2d 277, 279 (1963); State ex rel. Livingston v. District Court, 90 Mont. 191, 300 P. 916 (1931). . The City presented expert testimony to the effect that a number of alternate routes for the sewer line were considered, and that the decision to locate it on the south side of the street (as opposed to the north side, the alternate route proposed by the property owners) was based upon an estimated $40,000 saving in costs as of December, 1972, when the decision as to the location of the line was made. The two proposed routes were otherwise substantially equal in terms of other considerations such as environmental and engineering requirements. .We note that the property owners presented expert testimony that as of October, 1974, the cost of contructing the line on the route selected might be as much as almost $7,000 greater than that projected for the other side. It was conceded, however, that there was considerable latitude in these cost projections, and it might still be cheaper to build on the route selected. On this state of the record, we are hardly convinced that any clear showing was made that the alternate route was in fact preferable, even in terms of cost, let alone persuaded that such a showing would itself justify a finding that the City's decision was arbitrary. . It is not seriously contended here that the project must provide a direct or immediate benefit to each condemnee in order to legitimate the particular taking. . We note that the planning and approval of the sewer project was completed approximately two years before the condemnation hearings were held, and it was at this time that bonds were sold and initial work on the project was commenced. It is clear that the requirements of effective advance planning and financing of public improvements, as well as the degree of certainty and specificity normally required in public construction contracts, operate to circumscribe the project's ability to adapt to subsequent individual design changes. We cannot say, on the record before us, that the City was unmindful of minimizing private injury at the time it completed its plan, or that conditions had so changed by the time condemnation proceedings were commenced two years later that its original considerations were inapplicable or that the planned route was no longer justifiable. . See State Highway Comm'n v. Crossen-Nissen Co., 400 P.2d at 286, where it was recognized that individual losses and hardships are endemic in condemnation cases, but that evidence of such hardship or that other feasible routes were available does not of itself supply the clear and convincing proof required to negate the determinations of the condemning agency, or to establish that the taking is unnecessarily injurious. Accord, State ex rel. Livingston v. District Court, 90 Mont. 191, 300 P. 916 (1931). . Our decision in this case was announced from the bench after oral argument, and the mandate has previously issued.

10343812

Floyd J. SALTZ, Appellant, v. Deana SALTZ, Appellee

Saltz v. Saltz

1995-10-13

No. S-6318

1070

1071

903 P.2d 1070

903

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Floyd J. SALTZ, Appellant, v. Deana SALTZ, Appellee.

Floyd J. SALTZ, Appellant, v. Deana SALTZ, Appellee. No. S-6318. Supreme Court of Alaska. Oct. 13, 1995. Phil N. Nash, Kenai, for Appellant. Paul E. Olson, Anchorage, for Appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

696

4165

OPINION MATTHEWS, Justice. When Floyd and Deana Saltz decided to end their marriage, Floyd agreed to pay Deana $150 per month in spousal support for eighteen months. The superior court signed a decree of dissolution of marriage which incorporated this spousal support agreement. Alleging that she was never paid the spousal support, Deana filed a motion to reduce her spousal support claim to judgment. Floyd defended on the grounds that he gave Deana various checks which were used for Deana's benefit, and that those checks should be treated as payment of the spousal support due. Deana countered that the cheeks given to her were not used for her benefit and were mainly used to pay Floyd's bills. The superior court refused to credit any checks except one $100 check against the spousal support obligation. The court ruled that Floyd owed Deana $2600 in spousal support and awarded Deana $2500 in attorney's fees, which was more than seventy percent of the total judgment of $3545.72. On appeal, Floyd first makes several arguments concerning how the burden of proof should have been allocated. These arguments are waived because they were not made before the superior court. Floyd also argues that several of the superior court's findings of fact are clearly erroneous. The record supports all of the superi- or court's findings with the exception of the finding dealing with check 629, a $231.21 check made out to J.C. Penney. The superi- or court found that check 629 was used to pay a debt to J.C. Penney which predated the couple's divorce and that this debt was jointly owed by the couple. However, the record shows that Deana assumed the J.C. Penney's debt. We therefore conclude that the superior court should have credited check 629 toward the spousal support obligation. Finally, Floyd challenges the superior court's award of attorney's fees. The superi- or court did not give an explanation for awarding Deana attorney's fees in an amount greater than seventy percent of her judgment. Alaska Civil Rule 82(b) provides that the superior court shall award attorney's fees to a prevailing party according to a fixed schedule. The superior court may vary from the schedule for a number of reasons, but if it does so "the court shall explain the reasons for the variation." Alaska R. Civ. P. 82(b)(3) (final clause). In this ease, the superior court did not follow the schedule and did not explain its reasons for doing so. Deana argues that Rule 82 should not apply to a spousal support enforcement action. This argument has been rejected by our prior decisions. We have held that while Rule 82 generally does not apply to divorce cases, it does apply to post-judgment enforcement and modification motions. Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991); Hartland, v. Hartland, 777 P.2d 636, 644 (Alaska 1989); L.L.M v. P.M., 754 P.2d 262, 264 (Alaska 1988). Deana relies on Cameron v. Hughes, 825 P.2d 882 (Alaska 1992). In Cameron, we ruled that legal costs reasonably and necessarily incurred in collecting a judgment for past-due child support should be treated as "costs of the action" and awarded to the collecting party. Id. at 887. However, Cameron applies only to post-judgment fees incurred after a support obligation has been reduced to a unitary, fixed-sum judgment and only in child support eases. See Torrey v. Hamilton, 872 P.2d 186, 188 n. 1 (Alaska 1994). It does not apply in an action to reduce a spousal support obligation to judgment. Therefore, Rule 82 governs this case. Since the superior court did not state its reasons for deviating from the Rule 82 schedule, we VACATE the attorney's fees award and REMAND. If the superior court does not follow the schedule on remand, it must explain its reasons for doing so. The superi- or court should also amend the judgment to reflect our conclusion that check 629 should have been credited towards Floyd's spousal support obligation.

10473388

Irene Elapuck TURNER, Appellant, v. May PANNICK, Appellee

Turner v. Pannick

1975-09-25

No. 2293

1051

1056

540 P.2d 1051

540

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:20:29.736753+00:00

CAP

Before RABINOWITZ, Chief Justice, CONNOR and BOOCHEVER, Justices, and DIMOND, Justice Pro Tem.

Irene Elapuck TURNER, Appellant, v. May PANNICK, Appellee.

Irene Elapuck TURNER, Appellant, v. May PANNICK, Appellee. No. 2293. Supreme Court of Alaska. Sept. 25, 1975. E. John Athens, Jr., Alaska Legal Services, Fairbanks, for appellant. Robert B. Downes, Hodges & Assoc., Fairbanks, for appellee. Before RABINOWITZ, Chief Justice, CONNOR and BOOCHEVER, Justices, and DIMOND, Justice Pro Tem.

2956

17594

OPINION CONNOR, Justice. This is an appeal from a judgment denying appellant's petition to obtain custody of her child Roberta from appellee. Irene Turner filed a petition for a writ of habeas corpus in order to obtain custody of her two-year old daughter from appellant's sister, May Pannick. An order to show cause in the matter was entered and a hearing was held pursuant to .he order. After both parties and their witnesses had given testimony, findings of fact and conclusions of law were made and judgment was entered against appellant. Both sides agree that at the time the complaint was filed, appellant was 27 years old, divorced, pregnant and the mother of two children, Charles who was six years old and Roberta who was two years old. Turner who currently lives in an apartment in Fairbanks with her son and an 18-year old unemployed roommate, receives $200 per month in welfare benefits. During the past year, appellant also received approximately $1000 under the Alaska Native Land Claims Settlement Act. Turner, who receives no child support from her former husband, is occasionally employed as a babysitter. Appellant testified that she and her mother cared for Roberta with help from appellee. At the time of the hearing, Pannick was a 28-year old, unmarried woman employed as a civil service worker at Fort Wainwright. She lived in a house next to her parents' house and, prior to that, had lived at Fort Wainwright in base housing for four years. Although children were not permitted in base housing, Roberta often stayed with her during weekends and holidays. In February 1972 Turner executed a power of attorney giving Pannick authority to care for Roberta. According to Turner, this power of attorney was executed in order to insure that Roberta would be cared for should anything happen to her while appellant was away. Beginning in the spring of 1973 and continuing for the next six months, Turner lived in an apartment and trailer in Fairbanks with a man who is the father of her third child. Appellant's son, Charles, lived with her at these places, but her daughter remained at her parents' house. Turner frequently visited her daughter at her parents' house, and Roberta would spend some days and nights at the apartment and trailer. Turner testified that she always made certain that Roberta was cared for, and that she sometimes helped care for her during the day. According to appellant, her family enjoyed caring for Roberta and the child received a great deal of love and attention. In October 1973 Turner moved back into the small house next to her parents' house and extensively remodeled the interior in order that she, Charles and Roberta could live there together. Appellant was forced to vacate the house because of a dispute with appellee. Turner then moved into the apartment in which she presently resides with her son. Both sides presented conflicting testimony with respect to whether or not Turner gave Roberta to Pannick. Appellee and her witnesses testified that appellant gave Roberta to her and that she had taken care of and raised Roberta, with some help from her parents, ever since about the time Roberta was born. The superior court denied Turner's petition to obtain custody of her child, Roberta, without making a finding that appellant was unfit or had abandoned Roberta. The court concluded that award of custody to Pannick was in the child's best interest. In deciding this appeal, we must resolve the following issues: 1. Was it error for the lower court to deny appellant's petition where the court made no finding that appellant was unfit or had abandoned her child ? 2. Did the lower court err in applying the best interests of the child test rather than making a determination as to whether the welfare of the child required her to be placed in the custody of a non-parent? Turner argues that the burden of proof rested with appellee to prove appellant's unfitness, or that the welfare of the child required appellant's petition to be denied, or that appellant had abandoned her child. According to appellant, the burden of proof rested with appellee because of the nature of the proceeding and because of the presumption that parents are fit to have custody of their children. In addition, Turner notes that in Alaska preference is given to parents in a custody dispute with a non-parent. In Wilson v. Mitchell, 406 P.2d 4, 7 (Alaska 1965), we held that "[The] parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents." In so holding we reaffirmed our earlier decision in Hickey v. Bell, 391 P.2d 447 (Alaska 1964). In Bass v. Bass, 437 P.2d 324 (Alaska 1968), while specifically approving our holding in Wilson v. Mitchell, supra, we found in favor of the grandparents because the record presented evidence of the mother's emotional immaturity, her general neglect of the child's health, and her overall lack of interest in bringing up the child. Appellant argues that, in light of Wilson and Bass, proof of a parent's unfitness is necessary before that parent can be deprived of his child. Appellee responds by arguing that Wilson sets forth two requirements, fulfillment of either of which will justify a lower court's decision to award custody to a non-parent despite the preference normally given to a natural parent. The tests are that the non-parent clearly shows that the parent is unfit or that the welfare of the child requires it to be in the custody of the non-parents. Pannick concludes that the superior court correctly relied on the second test and, therefore, need not have found that Turner was unfit or had abandoned her child. The superior court, however, did not find that the welfare of the child required her to be in the custody of the non-parent but concluded that it was not in the best interests of the child to grant the petition. The application of the best interests standard is not in accordance with our decision in Wilson v. Mitchell, supra. A review of pertinent Alaska cases reveals a certain ambiguity with respect to the test applicable to suits by a biological parent to regain custody of his child from some third party. Wilson v. Mitchell, supra, at 7 requires that, in order for custody to be awarded to a non-parent, the parent must be deemed unfit or the welfare of the child must de mand that custody remain with the non-parent, at least until further proceedings are held. In Hickey v. Bell, 391 P.2d 447, 448 (Alaska 1964), we held that: "The trial court properly applied the majority view which is that as between parents and grandparents adversely claiming custody of a child, either parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents." (footnote omitted) On the other hand, in Bass v. Bass, 437 P.2d 324, 325 (Alaska 1968), we reaffirmed our conclusion in Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962) that: "In determining the custody of children the trial court should be guided by the rule of quite general application that the welfare and the best interests of the children should be given paramount consideration." (footnote omitted) However, in reaching our decision in Bass we also relied on the following language in Wilson v. Mitchell, supra, at 7: "[The] parent is entitled to a preference over the grandparents, unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents." (footnote omitted) Moreover, we note that Rhodes involved a custody dispute between two parents while Bass and Wilson involved a dispute between a natural parent and a non-parent. Thus, since the case law is not disposi-tive, we must now determine the standard applicable to custody disputes arising between natural parents and some third party. In order to satisfy the "welfare of the child" requirement, the non-parent must show that it clearly would be detrimental to the child to permit the parent to have custody. On the other hand, under the "best interests" test, the court is free to consider a number of factors including the moral fitness of the two parties; the home environments offered by the parties; the emotional ties to the parties by the child; the emotional ties to the child by the parties; the age, sex or health of the child; the desirability of continuing an existing child-third party relationship; and the preference of the child. The California supreme court, in In re B.G., 114 Cal.Rptr. 444, 523 P.2d 244 (1974), recognized the danger of giving courts the power to award custody of children to persons other than a parent solely on the grounds of best interests. If "best interest" of the child is the only criterion, then a judge may take children from their parents because the judge personally disagrees with the parents' limited means. The California court felt that the legislature, by passing a statute requiring the court to find that an award of custody to the parent would be detrimental to the child in a dispute between a parent and a non-parent, evidenced its desire to avoid the situation outlined above and exemplified in Painter v. Bannister (1966), 258 Iowa 1390, 140 N.W.2d 152, cert. denied, 385 U.S. 949, 87 S.Ct. 317, 17 L.Ed.2d 227. In Painter an Iowa court awarded custody to the minor's grandparents because it disapproved of the Bohemian lifestyle of the photographer father, despite evidence of the father's care and concern for the child. The Iowa court reasoned that the grandparents' home provided "a stable, conventional, middle-class, middlewest background." 140 N.W.2d at 154. The California legislature, on the other hand, considered parental custody to be preferable and only to be refused where clearly detrimental to the child. We agree. Unless the superior court determines that a parent is unfit, has abandoned the child, or that the welfare of the child requires that a non-parent receive custody, the parent must be awarded custody. We have reviewed the entire record and have concluded that Pannick did not meet her burden of proving that Turner was unfit or had abandoned her child or that the child's welfare required that Pan-nick be awarded custody. Therefore, we reverse the superior court's judgment and order that appellant be given custody of Roberta. Reversed. RABINOWITZ, C. J., and DIMOND, J. pro tern., concur separately. ERWIN, J., not participating. . The nature of the proceeding was governed by Civil Rule 86(l) which requires that an order to show cause be issued upon the filing of a complaint. Civil Rule 86(l) provides: "An order to show cause, and not a writ of habeas corpus, shall be issued initially if the action is brought by a parent, foster parent, or other relative of the child, to obtain custody of the child under the age of sixteen years from a parent, foster parent, or other relative of the child, the Commissioner of Health and Welfare, or any other person." The order to show cause was issued and Pannick was ordered to appear before the court and show cause why a writ of habeas corpus should not issue for appellant to obtain custody of her child. . Reynardus v. Garcia, 437 S.W.2d 740, 743 (Ky.1968); B. v. L., 75 Misc.2d 576, 348 N.Y.S.2d 21 (1973); In re Spencer, 74 Misc. 2d 557, 346 N.Y.S.2d 645 (1973). . Comment, "Alternatives to 'Parental Right' in Child Custody Disputes Involving Third Parties," 73 Yale L.J. 151, 153 (1963). We are aware that the author of this article concluded that: "[W]hether as a result of these feelings or because of a sympathy for parental emotions, most courts applying the best interest test to third party • situations utilize a variety of procedural devices which increasé the probability of the natural parent winning the suit. In effect, the courts seem to have created a continuum from a neutral determination of the best interest of the child to a disguised application of the parental right doctrine." However, since Alaska law on this point is unsettled, we see no reason to adopt both the "welfare of the child" and "best interests" test when it is quite possible that the lower courts will administer the "best interests" test in a way that makes it indistinguishable from the "welfare of the child" test. . Abandonment of a child has often been held to be sufficient ground for denying a parent custody of his child. In D. M. v. State, 515 P.2d 1234, 1237 (Alaska 1973), we defined what constitutes sufficient abandonment to deprive a mother of custody of her child: "A better definition of abandonment, for these purposes, is that abandonment consists of conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship." See also In re Adoption of A.J.N., 525 P.2d 520, 523 (Alaska 1974) and Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974), in which we held that the "best interests" test cannot be used to deprive a parent of custody.

10341435

Stephen D. CRIM, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Crim v. Municipality of Anchorage

1995-09-29

No. A-5507

586

589

903 P.2d 586

903

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Stephen D. CRIM, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Stephen D. CRIM, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-5507. Court of Appeals of Alaska. Sept. 29, 1995. Michael B. Logue, Gorton & Associates, Anchorage, for Appellant. Carmen E. ClarkWeeks, Deputy Municipal Prosecutor, Anchorage, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1355

8371

ORDER IT IS ORDERED: 1. Memorandum Opinion and Judgment No. 3249 issued on September 20, 1995, is WITHDRAWN. 2. Opinion No. 1439 is issued on this date in its place. Entered by direction of the Court at Anchorage, Alaska, on September 29, 1995. OPINION BRYNER, Chief Judge. The district court, sitting without a jury, convicted Stephen D. Crim of driving while intoxicated. Crim appeals, contending that the court erred by denying his motion to suppress evidence of his breath test result. We affirm. On the evening of February 22,1994, Crim sped through the gate to Elmendorf Air Force Base without stopping and knocked over two traffic cones. Anchorage Police Officer Rodney Ryan arrested Crim for driving while intoxicated and brought him to the police station for processing. At the station, after the observation period, Crim submitted to the breath test. Officer Ryan then read to Crim the notice of right to independent test while they waited for the intoximeter machine to process the breath sample. Crim answered without hesitation and apparently without confusion that he did not want to have an independent test performed. Several minutes later, Ryan informed Crim that his breath test result was 0.161. Crim later moved to suppress his breath test result, arguing that he had not validly waived his right to an independent test, because he had not known his breath test result when Ryan informed him of the right to an independent test. After conducting an evi-dentiary hearing and reviewing the tape of Crim's processing at the police station, District Court Judge Stephanie Rhoades denied Crim's motion. Judge Rhoades found that Crim, although "clearly upset and intoxicated," had been "capable of listening, understanding and appropriately responding to the many questions put to him by law enforcement. He knew where he was and what was happening to him." The judge found that Crim had been informed of his right to an independent test and had been given "a reasonable opportunity to test the accuracy of the intoximeter." Judge Rhoades concluded that Crim had knowingly and voluntarily declined the offer of an independent test, notwithstanding the fact that he had not yet learned the intoximeter result. The intoxim-eter result was introduced in evidence at Crim's trial, and Crim was convicted. On appeal, Crim contends that Judge Rhoades erred by not suppressing the breath test result. A driver arrested for driving while intoxicated has the due process right under the Alaska Constitution to a reasonable opportunity to challenge the accuracy of the police-administered breath test. Lau v. State, 896 P.2d 825, 828 (Alaska App.1995). One way for the police to satisfy the demands of due process is to "effectively comply" with AS 28.35.033(e), the statute establishing a right to obtain an independent test of the driver's alcohol level. Effective compliance requires, in part, that the police give the defendant "clear and express notice" of this statutory right. Gundersen v. Anchorage, 792 P.2d 673, 676-77 (Alaska 1990) (quoting Anchorage v. Serrano, 649 P.2d 256, 258 n. 5 (Alaska App.1982)). A driver may relinquish the right to challenge the breath test, but only by a knowing and voluntary waiver of that right. Gundersen, 792 P.2d at 677. If the driver— due to intoxication or any other reason — fails to acquire "a basic understanding of the right to an independent test," then the driver's decision to decline the test cannot be considered a knowing and intelligent waiver. Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App.1991). In this case, Judge Rhoades specifically found that Crim had acquired a basic understanding of the right to an independent test, had been given "a meaningful opportunity to exercise his right to an independent chemical test," id. at 311, but had knowingly and voluntarily declined the opportunity. Judge Rhoades' factual findings are not clearly erroneous. The evidence presented below established that Ryan fully explained Crim's right to obtain an independent test; Crim understood the right and declined to exercise it. Crim nevertheless argues that, without knowing the result of his mandatory breath test, he could not have assessed the potential advantages and disadvantages of availing himself of the right to an independent test. Crim maintains that, for this reason, he could not have knowingly and intelligently waived his right to the independent test. In advancing this argument, Crim essentially asks us to declare as a matter of law that no DWI arrestee can knowingly and intelligently decline to take an independent blood test before being apprised of the results of the mandatory breath test. But the need for such a rule is far from apparent. The potential significance of a breath test is hardly the type of subtlety that will be lost on a typical DWI arrestee. Well before the result of a breath test is disclosed, the arres-tee will ordinarily understand that it could have potentially devastating consequences and that it will not necessarily be accurate. This holds true for drunk and sober arres-tees alike; if anything, a sober person mistakenly arrested for DWI will have more reason than an intoxicated arrestee to fear the consequences of an inaccurate breath test, and more reason to appreciate the potential benefits of an independent test. Thus, in practical terms, a rule categorically declaring all pre-result waivers involuntary seems both artificial and uncalled for. As in other situations involving the relinquishment of legal rights, the totality of the circumstances should govern the determination of the voluntariness of a waiver of the opportunity to take an independent test. In the present case, the fact that Crim did not yet know his test result was certainly one factor among many for the court to consider in determining whether Crim's decision to decline an independent test was knowing and voluntary. However, there is nothing in the record suggesting that Crim's lack of knowledge of his own test result impaired his ability to understand the purpose of the test he had already taken or the nature of his right to an independent chemical test. Crim does not claim to have been misled as to the possibility of faffing his breath test. The circumstances of his case provide no basis for concluding that he was incapable of understanding that possibility and its potential significance to his case. To the contrary, even without knowing the actual result of his test, Crim appeared to understand the gravity of his situation, that he had been arrested for driving while intoxicated, that the police had taken a sample of his breath for a reading of his alcohol level, and the significance of an opportunity to have an independent test of his alcohol level. The record as a whole establishes that Crim voluntarily declined the offer of an independent blood test. Judge Rhoades did not err in denying Crim's motion to suppress. We AFFIRM the conviction. . AS 28.35.033(e) reads in part: "The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer." . It would certainly have been preferable for Ryan to have waited for the test result before asking Crim if he wanted an independent test. The record indicates that standard procedure calls for DWI arrestees to be informed of the right to an independent test only after the result of the mandatory breath test has heen received. On cross-examination, Ryan, a new officer, acknowledged that he had not followed proper procedure with Crim. . Furthermore, Crim does not claim that the police in any way suggested that his initial decision to decline the independent test was final— that he could not reconsider his decision after he learned the result of his breath test. Yet Crim made no request for, or even inquiry about, an independent test after the result of his breath test was disclosed.

10583645

STATE of Alaska, Appellant, v. PINBALL MACHINES, Appellee; PINBALL MACHINES, Appellant, v. STATE of Alaska, Appellee

State v. Pinball Machines

1965-08-19

Nos. 529, 539

923

928

404 P.2d 923

404

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:35.076971+00:00

CAP

Before NESBETT, C. J., DIMOND, J., and FITZGERALD, Judge.

STATE of Alaska, Appellant, v. PINBALL MACHINES, Appellee. PINBALL MACHINES, Appellant, v. STATE of Alaska, Appellee.

STATE of Alaska, Appellant, v. PINBALL MACHINES, Appellee. PINBALL MACHINES, Appellant, v. STATE of Alaska, Appellee. Nos. 529, 539. Supreme Court of Alaska. Aug. 19, 1965. Warren C. Colver, Atty. Gen., Juneau, and Dorothy Awes Haaland, Anchorage, for the State. Roger G. Connor and Allan A. Engstrom, Juneau, and Millard Ingraham, Yeager & Ingraham, Fairbanks, Peter J. Kalama-rides, Anchorage, for Pinball Machines. Before NESBETT, C. J., DIMOND, J., and FITZGERALD, Judge.

2752

15755

DIMOND, Justice. In Pin-Ball Machine v. State , decided in 1962, there was evidence that certain pinball machines had been so used that money had been paid for free games won on the machines. We held that the machines were gambling implements within the meaning of the statute which requires law enforcement officials in Alaska to seize and destroy all gambling implements. We did not decide whether, lacking evidence of cash payoffs for free games won, such machines were gambling devices in themselves. That is the question that was presented in the two cases now before us. In No. 539 the superior court at Fairbanks held that a pinball machine was a gambling device per se, while in No. 529, the superior court at Anchorage held that it was not. We hold that the Fairbanks court was correct and the Anchorage court, in error, and that the pinball machines involved in these cases are gambling implements in themselves, subject to seizure and destruction under law. The type of pinball machine involved in these cases is an electro-mechanical device operated by a motor which is activated by the insertion of a coin in the machine. Balls are released which the player shoots with a plunger device on the table or play-board portion of the machine. The balls drop into numbered holes which cause corresponding numbers on a bingo-like card on the backboard to light up. When the player gets a certain combination of lighted numbers on the bingo card, the machine registers a certain number of free games to which the player becomes entitled. The number of free games that one may win depends not only upon the number and sequence of lighted numbers on the bingo card, but also upon the odds which are controlled by a mechanism called a search relay. Odds are varied and generally increase in the player's favor as he inserts more coins in the machine or utilizes the free games that he has accumulated. The effect of increasing the odds is to increase the number of free games that one may win for the same number and sequence of lighted numbers on the bingo card. For example, one may win 16 free games for 4 consecutive lighted numbers in a certain row. As the odds change in the player's favor, the number of free games for the same sequence of lighted numbers could possibly increase to 96. It is conceivable that a player could win as many as 999 free games in all. When free games accumulated are not played, they can be removed from the machine by pushing a runoff button. The number of free games thus removed is recorded on a meter inside the machine. The courts generally agree that the essential elements of gambling are price, chance and prize. Thus, one gambles when he pays a price for a chance to obtain a prize. A gambling implement is some tangible thing which is used or mainly designed or suited for gambling. All of the essential elements of gambling are present here. One may not play a pinball machine without paying a price, that is, by inserting money into the machine to activate it for play. The element of chance is present, because the outcome — the number of free games that one may win — is not a certain thing. It may be true that some degree of skill is also involved. As the trial judge in No. 529 stated: 5.This court, from the evidence presented, cannot find that the game is played wholly without skill. The object is to roll at least three of the five balls in numbered holes or slots which will light up the number on the black — on the backboard of the machine in order to win any free games. There is a bumper in front of each numbered hole on the board of the machine which would prevent the marble being played from going directly into the hole. However, the more experienced and skilled a player is, the more likely he is to maneuver the ball past the bumper into the hole. Three numbers in a row might light up — three numbers in a row must light up to win a free game. The more numbers in a row which light up the more games are won. The court finds that a skilled player would have a better opportunity to secure or win free games on the machine than would an unskilled player. The fact that some skill may be involved does not mean that there is no gamble. To say that a skilled player would have a better opportunity than an unskilled player to win free games is not the same as saying that the skilled player's operation of the machine will certainly result in a fixed number of free games each time he shoots his quota of balls. No matter how much skill one possesses, he has no control over the odds which vary according to the number of coins that are inserted or the number of accumulated games won that are utilized for free play. The odds are controlled entirely by an intricate mechanism within the machine. When balls are placed in a certain sequence of holes, the odds determine the number of free games that the player will receive without regard to his skill or lack of it. While there is uncertainty, there is chance. Uncertainty in the number of free games that one may win greatly predominates over any skill that may be involved. In these circumstances chance, as an element of gambling, exists. The remaining question is whether the element of prize is present. • The basic argument made by the machines' owners is that when one accumulates free plays he is accorded the privilege of entertaining or amusing himself by playing additional games, that such free games are the only thing that a player may win, and that they do not amount to a prize because they represent neither money nor any other thing of value. A prize is something offered or striven for in a contest of chance — something which may be won by chance. Whether or not one finds amusement or entertainment in playing a pinball machine, there is always something that he is striving to win by operation of chance, namely, free games. This is the prize — the opportunity to continue to play the machine without paying for it. A pinball machine that costs money to operate and which, through the element of chance awards free games, cannot be operated without the three elements of price, chance and prize being present. Those three elements are inherent in the make-up and operation of the machine, and since they are the elements that constitute gambling, a pinball machine is in itself a gambling device. The appellant in No. 539 argues that it is implicit in gambling that the prize which one chances to win is more valuable than the price which he pays, that free games have no monetary market value, and that the player who wins free games has not received a prize because he has never had a chance to gain something of greater monetary value in relation to the monetary value of the price he had paid. It is not of the essence of gambling that the element of prize have a monetary market value. If that which one seeks to attain, regardless of whether it has value in money, may be attained by chance after payment of a price, then one is gambling. The intrinsic nature of gambling is the payment of a price for a chance to obtain that which one seeks but which one could not obtain unless the element of chance were present and unless one had paid a price for the availability of the chance. Appellee in No. 529 contends that state law pertaining to pinball machines constitutes legislative recognition that such machines are not gambling devices per se. AS 43.35.010 imposes a tax on a person who maintains for use or permits the use on premises under his control of a coin-operated device class 1, class 2 or class 3. The class 2 device, which is the machine involved in these cases, is defined by AS 43.35.090(2) as meaning a pinball machine, including a bingo type coin-operated device, horse race machine or other apparatus or device which operates by means of insertion of a coin, token, or similar object and which, by embodying the elements of chance or skill, awards free plays and which contains a device for releasing free plays and a meter for registering or recording the plays so released, or with a provision for multiple coin insertion for increasing the odds; class 2 does not include bona fide vending machines in which gaming or amusement features are not incorporated; The substance of appellee's argument is: that the legislature did not consider that a. class 2 coin-operated device was a gambling-implement in itself, because it licensed such a machine for operation and sanctioned its: use insofar as the machine awards free-plays that are not compensated for in-money or other things of monetary value. Appellee's argument has no> legal or logical foundation. The legislature did not "license" a pinball machine for operation. The statute says nothing about a license. It imposes a tax on a person-who maintains or who permits the use on premises under his control of a pinball machine. Such a tax is not a license of the business of operating pinball machines in the sense that it confers a right which would not exist in the absence of the imposition of the tax. The taxing statute cannot reasonably be read that way. And it is too well settled for argument that a business expressly condemned and made unlawful by statute is not made lawful by the fact that a tax is imposed with respect to the operation of such business. As the United States Supreme Court has said: The burden of the tax may be imposed alike on the just and the unjust. It would be strange if one carrying on a business the subject of an excise should be able to excuse himself from payment by the plea that in carrying on the business he was violating the law. The rule has always been otherwise. Nor did the legislature sanction the use of a pinball machine to the extent that it awards free plays and nothing else. AS 43.35.090(2), which contains the definition of a class 2 coin-operated device, is nothing more than that — a definition of that which must exist before the tax becomes, applicable. Such a definition of a term cannot logically be construed, as a legislative statement of the uses and purposes to which a pinball machine may be put. As part of the same statute which defines a class 2 coin-operated device, AS 43.35.-070 states that: This chapter does not legalize gambling or the possession of a gambling device. We have held that a class 2 device, a pinball machine, is a gambling device in itself. The above quoted statutory provision makes it clear that the use or possession of a pinball machine is not made lawful by the mere fact that such machine is defined by law for tax purposes. The appellant in No. 539 contends that there was no adequate proof that the pinball machines which are the subject of this case were the same as the pinball machine which was demonstrated before the court. A witness for the state, who qualified as an expert on pinball machines, demonstrated a machine before the court and testified as to its make-up and operation. He testified that he had examined each of the machines which were the subject of this case and that the mechanical make-up of those machines was basically the same as the machines demonstrated in court and had the same general features of operation. The court could infer from this evidence that the machines which were the subject of the action in the court below, although not physically present before the court, were pinball machines of the kind described by the witness, with the basic features of a coin insertion to activate the machine, the shooting of balls by the player, the dropping of balls into holes, the lighting of numbers on a bingo-type card, the varying of odds by a mechanism within the machine, and the winning of free games by chance. Machines possessing those characteristics are gambling implements in themselves. Proof that the subject machines were gambling implements was sufficient. The pinball machines involved in these two cases are gambling implements within the meaning of AS 11.45.040 and are subject to seizure and destruction. The judgment in File No. 529 is reversed and the judgment in File No. 539 is affirmed. The cases are remanded for further proceedings consistent with the views expressed in this opinion. . 371 P.2d 805 (Alaska 1962) . AS 11.45.040 (formerly § 4-2-1 ACLA 1949) provides: The commissioner of public safety, a member of the division of state police, or a police or peace officer designated by the commissioner shall seize and destroy a gambling implement. . Annot., 89 A.L.R.2d 815, 826-827 (1963). . Pin-Ball Machine v. State, 371 P.2d 805, 808 (Alaska 1962) (actual use for gambling) ; People v. Gravenhorst, Sp.Sess., 32 N.Y.S.2d 760, 766 (1942); Approximately 59 Gambling Devices v. People ex rel. Burke, 110 Colo. 82, 130 P.2d 920, 922 (Colo.1942); People v. One Machine Known as "Circus Days", 23 Ill.App.2d 480, 163 N.E.2d 223, 226 (Ill.1960) (design or adaptation for gambling). In Pin-Ball Machine v State, 371 P.2d 805, 808 (Alaska 1962), we defined a gambling implement as "any tangible means, instrument or contrivance by which money may be won or lost as distinguished from the game itself." We pointed out that this was but one of the commonly accepted definitions of a gambling implement, and that we were applying it in that case because there was an actual payoff. We did not foreclose ourselves from adopting a broader and more comprehensive definition of gambling as we have done in these cases. . Alvest, Inc. v. Superior Oil Corp., 398 P.2d 213, 215 (Alaska 1965). . Westerhaus Co. v. City of Cincinnati, 165 Ohio St. 327, 135 N.E.2d 318, 327 (1956); Johnson v. Phinney, 218 F.2d 303, 306-307 ( 5th Cir.1955); United States v. 24 Digger Merchandising Machines, 202 F.2d 647, 650-651 (8th Cir.1953). . Webster, New International Dictionary, at 1970 (2d ed. 1963-unabridged). . The prevailing view among the states is that a free reply on a pinball machine is either a prize or a thing of value, within the meaning of various anti-gambling laws. See State v. One Slot Machine, 305 S.W.2d 386 (Tex.Civ.App.1957); Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N.E.2d 159, 161 (1939); State v. Sandfer, 93 Okl.Cr. 228, 226 P.2d 438, 444 (1951); Farina v. Kelly, 147 Conn. 444, 162 A.2d 517, 520 (1960); Westerhaus Co. v. City of Cincinnati, 165 Ohio St. 327, 135 N.E.2d 318, 325 (1956); State v. Doe, 242 Iowa 458, 46 N.W.2d 541, 544 (1951); Annot., 89 A.L.R.2d 815, 828 (1963). . Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475, 479 (1955); United States v. Stafoff, 260 U.S. 477, 480, 43 S.Ct. 197, 67 L.Ed. 358, 361 (1922); United States v. Yuginovich, 256 U.S. 450, 462, 41 S.Ct. 551, 65 L.Ed. 1043, 1047 (1920); Pepple v. Headrick, 64 Idaho 132, 128 P.2d 757, 762 (1942); Hunter v. Mayor and Council of Teaneck Tp., 128 N.J.L. 164, 24 A.2d 553, 555-556 (1942); Ingram v. Bearden, 212 S.C. 399, 47 S.E.2d 833, 834-835 (1948); Hinkle v. Scott, 211 N.C. 680, 191 S.E. 512, 513 (1937); State v. Abbott, 218 N.C. 470, 11 S.E .2d 539, 544 (1944); Martin v. State, 144 Tex.Cr.R. 313, 162 S.W.2d 722, 724 (Tex.App.1942); State v. Israel, 124 Mont. 152, 220 P.2d 1003, 1011 (1950); Casmus v. Lee, 236 Ala. 396, 183 So. 185, 186-187, 118 A.L.R. 822 (1938). . United States v. Constantine, 296 U.S. 287, 293, 56 S.Ct. 223, 226, 80 L.Ed. 233, 23S (1935).L . Note 2, supra.

10466322

Perrine GILBERT, Petitioner, v. STATE of Alaska, Respondent

Gilbert v. State

1975-09-25

No. 2656

485

486

540 P.2d 485

540

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:20:29.736753+00:00

CAP

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

Perrine GILBERT, Petitioner, v. STATE of Alaska, Respondent.

Perrine GILBERT, Petitioner, v. STATE of Alaska, Respondent. No. 2656. Supreme Court of Alaska. Sept. 25, 1975. Brian Shortell, Public Defender, Bruce Abramson, Asst. Public Defender, Anchorage, for petitioner. Avrum M. Gross, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Charles M. Merriner, Asst. Dist. Atty., Anchorage, for respondent. Before RABINO WITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER and BURKE, JJ.

645

3840

BURKE, Justice. Petitioner seeks review of an order of the superior court remanding him to custody, without bail, while awaiting trial on criminal charges. Alaska's procedures for review of an order denying bail are designed to ensure speedy consideration at the appellate level. Accordingly, we have granted review. On September 10, 1975, petitioner was remanded to custody by the Honorable Ralph E. Moody. Judge Moody refused to set bail, finding that petitioner "is a danger to the community because of threats he made to a potential witness while out on his own recognizance." On September 12, 1975, Judge Moody refused to modify his earlier order. In Martin v. State, we had occasion to pass upon the legality of an identical order. There, as here, there was a denial of bail after a finding by the superior court that the accused posed a danger to the community. We held that an order denying bail to one accused of a crime, but not yet convicted, was in violation of Article I, Section 11 of the Constitution of the State of Alaska and the provisions of the Alaska Bail Reform Act. We are required, therefore, to hold that the superior court abused its discretion in the instant case. The State of Alaska, expressly recognizing the significance of our holding in Martin, does not oppose the setting of bail and requests this court to set bail in the amount of $50,000. While we are required to hold that the superior court erred in refusing to set bail, we are not persuaded to substitute our judgment for that of the court below on the question of what would be a proper amount or the other conditions of release that might be imposed. We choose, instead, to remand the case for further proceedings by that court. Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Upon remand the superior court shall enter an immediate order setting petitioner's bail and imposing such other conditions of release as deemed appropriate. Reversed and remanded. . In separate indictments, petitioner is accused of two unlawful sales of amphetamines, in violation of AS 17.12.010. . Martin v. State, 517 P.2d 1389, 1391 (Alaska 1974). . See AS 12.30.030(b) ; Buies 23 and 24, Buies of Appellate Procedure. . State's "Besponse to Petitioner's Petition for Bail Beview". . Id. . 517 P.2d 1389 (Alaska 1974). . Article I, Section 11 provides, in part: "The accused is entitled . . . to be released on bail . . . ." . AS 12.30.010 et seq. . AS 12.30.030(b) provides, in part: [Upon review of orders concerning bail] the order of the lower court shall be affirmed unless it is found that the lower court abused its discretion. . See AS 12.30.030(b). . Martin v. State, 517 P.2d 1389, 1397 (Alaska 1974). . In Reeves v. State, 411 P.2d 212 (Alaska 1966), we held that an indigent defendant does not have an absolute right to be released on his personal recognizance prior to trial, approving the rationale of Pilkinton v. Circuit Court, 324 F.2d 45 (8th Cir. 1963). It follows that the accused does not necessarily have the right to have his bail set in an amount that he can post.

10343850

Alva W. PERATROVICH, Sr., Appellant, v. STATE of Alaska, Appellee

Peratrovich v. State

1995-10-06

No. A-5356

1071

1079

903 P.2d 1071

903

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Alva W. PERATROVICH, Sr., Appellant, v. STATE of Alaska, Appellee.

Alva W. PERATROVICH, Sr., Appellant, v. STATE of Alaska, Appellee. No. A-5356. Court of Appeals of Alaska. Oct. 6, 1995. James W. McGowan, Sitka, for Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

4490

28354

OPINION MANNHEIMER, Judge. Alva W. Peratrovich, Sr., appeals his conviction for third-degree sexual abuse of a minor (sexual contact with a minor between the ages of 13 and 15), AS 11.41.438(a)(1). He also appeals two provisions of his sentence. We affirm Peratrovich's conviction, but we remand this ease to the superior court for reconsideration of Peratrovich's sentence. During her sixth-grade year, V.J.'s parents (who lived in Craig) sent her to live with her grandmother and stepgrandfather, Clara and Alva Peratrovich, Sr., so that she could attend school in Klawock. V.J. was 11 and 12 years old during that school year. V.J. testified that Alva Peratrovich often entered her room at night. V.J. would awaken to find Peratrovich sitting on her bed, touching her genitals and her breasts. V.J. testified that she "would push him away, but he wouldn't go. I'd tell him to stop, and he wouldn't. There was nothing I could do; he was bigger than me. I couldn't do anything." In the fall of 1988, around the time V.J. began eighth grade, her mother informed her that her grandmother had been diagnosed with breast cancer. V.J. no longer lived at her grandparents' house, but often spent time there after school. One afternoon after school, V.J. was in the back room of the Peratrovich home, watching television. Per-atrovich entered the room and informed V.J. of her grandmother's breast cancer. V.J. told Peratrovich that she was already aware of her grandmother's illness. At this point, Peratrovich insisted on "showing" V.J. where her grandmother's tumors were by touching V.J.'s breasts. According to V.J.'s testimony, Peratrovich kept trying to show me . where [the doctors] thought the lumps were going to be, and I kept telling him that I already knew, . and he just decided to show me anyway. . He started feeling my breasts, and pushing on them, and . showing me where her lumps were. V.J. became angry and began to yell, whereupon Peratrovich stopped touching her. It was this incident that formed the basis of Peratrovich's conviction for third-degree sexual abuse of a minor. (Peratrovich was originally also indicted for the sexual touching that occurred during V.J.'s sixth-grade year, but this charge was dismissed after the superior court ruled that the charge was barred by the statute of limitations.) Admissibility of Evidence of Peratrovich's Prior Sexual Abuse of V.J. Before his trial, Peratrovich asked the superior court to prohibit the State from introducing evidence of Peratrovich's sexual abuse of V.J. during her sixth-grade year. Superi- or Court Judge Michael A. Thompson ruled that this evidence was admissible under Alaska Evidence Rule 404(b)(2). Peratrovich questions this ruling on appeal. In the version in effect at the time of Peratrovich's trial, Evidence Rule 404(b)(2) declared that, in a prosecution for either physical or sexual abuse of a minor, evidence of other acts by the defendant toward the same or another child is admissible to show a common scheme or plan if admission of the evidence is not precluded by another rule of evidence and if the prior offenses (i) are not too remote in time; (ii) are similar to the offense charged; and (iii) were committed upon persons similar to the prosecuting witness. Peratrovich argues that his sexual abuse of V.J. during her sixth-grade year was "too remote in time" because it occurred two years before the act charged in the indictment. Peratrovich also argues that his acts of touching V.J.'s genitals and breasts were not "similar to the offense charged" because they occurred at night, because they involved genital touching, and because they occurred in a different year. Peratrovich's argument is meritless. First, we are unpersuaded by Peratrovich's purported distinctions between his 1988 sexual abuse of V.J. and his 1986 sexual abuse of V.J.. Second, Peratrovich's suggested construction of Evidence Rule 404(b) would run completely counter to the legislature's intention when it enacted this rule. The current version of Evidence Rule 404(b) exists because the legislature wished to make it easier for the prosecution to introduce evidence of a defendant's other acts of sexual or physical abuse. See the House Judiciary Committee's Letter of Intent accompanying Sec. 9, ch. 66 SLA 1988, found in the 1988 House Journal, p. 2332. But even before Evidence Rule 404(b) was amended by the legislature, the evidence challenged in this case would have been admissible. In Burke v. State, 624 P.2d 1240, 1249 (Alaska 1980), the supreme court recognized a "lewd disposition" exception to former Rule 404(b). The holding in Burke was described by this court in Moor v. State, 709 P.2d 498, 506 (Alaska App.1985): In Burke, the supreme court considered a sexual offense exception to the general rule excluding evidence of other crimes or wrongful acts[.] Under this exception, such evidence was admissible to show "lewd disposition." The court decided that, where the prior alleged acts are all with the same victim, evidence of those acts is admissible. The challenged evidence in this case is of sexual abuse that Peratrovich perpetrated upon the same victim. It was therefore admissible under Burke even before the legislature amended Rule 404(b). Since the legislature's declared purpose in amending the rule was to expand the scope of admissibility, we must reject Peratrovich's contention that his other acts of sexual abuse committed upon V.J. were inadmissible under the amended version of Rule 404(b) even though they would have been admissible under the former version of the rule. Whether the Statutory Definition of "Sexual Contact" is Unconstitutionally Vague Peratrovich next raises a constitutional challenge to his conviction. At trial, Peratro-vich's basic defense was that the sexual contact had not occurred — that V.J. was not telling the truth. However, as an alternative position, Peratrovich contended that if he touched V.J.'s breasts, it was not for any sexual purpose but only in fulfillment of his role as V.J.'s caretaker, trying to explain her grandmother's illness. The definition of "sexual contact" contains an exception for touchings "that may reasonably be construed to be normal caretaker responsibilities for a child, interactions with a child, or affection for a child". See AS 11.81.900(b)(53)(B)(i). The jury was instructed on this exception. By returning its guilty verdict, the jury in Peratrovich's case impliedly found, beyond a reasonable doubt, that Peratrovich's touching of V.J.'s breasts could not reasonably be construed as part of normal caretaker responsibilities. On appeal, Peratrovich argues that the meaning of the phrase "normal caretaker responsibilities" is unconstitutionally vague. He contends that the word "normal" fails to specify a reasonably ascertainable standard of conduct because people will have different definitions of what is normal. Peratrovich relies on Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (M.D.Pa.1975), in which the court struck down an ordinance that established a nighttime curfew for minors unless the minor had obtained a permit from the mayor for "normal or necessary nighttime activities". Id. at 1247. The federal court held that the ordinance was unconstitutionally vague because the use of the word "normal" placed unfettered discretion in the hands of the mayor. Id. at 1250. However, the question is not what "normal" might mean in the abstract. The word must be interpreted in context. For example, even though the Bykofsky court decided that the phrase "normal . nighttime activities" was too vague, the court upheld the constitutionality of other curfew provisions dealing with "normal travel" along "normal routes". Thus, to decide the constitutionality of Alaska's definition of "sexual contact", we must examine the meaning of the phrase "normal caretaker responsibilities" in the context of a statutory scheme that generally forbids sexual contact with minors. Because "normal caretaker responsibilities" are an exception to the general definition of "sexual contact", any question concerning the scope of "normal caretaker responsibilities" arises only if the jury first finds, beyond a reasonable doubt, that the defendant knowingly touched the minor's genitals, anus, or female breast. After the State proves the elements of sexual contact, then the exception for "normal caretaker responsibilities" operates as a "defense" (as defined in AS 11.81.900(b)(15)) to the crime. As stated in the legislative commentary to the definition of "sexual contact": The legislature intends that the exceptions listed in revised AS 11.81.900(b)[ (53) ](B) . shall not be part of the prosecution's pleading and proof in its case in chief. Rather, these exceptions must be raised by the defendant. If raised, the prosecution bears the burden of disproving the exception beyond a reasonable doubt. The legislature intends that the exceptions operate as other defenses provided for in the criminal code. See AS 11.81.900(b)(15). 1984 Senate Journal, p. 3388 (emphasis in original). If the State proves that the defendant engaged in sexual contact with a minor, and if the defendant asserts the defense of "normal caretaker responsibilities", the statute directs the jurors to decide whether the defendant's act "may reasonably be construed to be normal caretaker responsibilities". (Emphasis added.) In other words, the jurors are not asked to decide whether they personally feel that the defendant's act was part of "normal caretaker responsibilities", but rather whether the defendant's acts might be construed as normal caretaking by a reasonable person. The defendant is to be acquitted unless the jurors conclude that no reasonable person would construe the defendant's act as normal caretaking. Measuring the defendant's actions against what a reasonable person would deem necessary or proper in a given situation is a familiar legal standard. It is used, for example, to evaluate claims of self-defense and necessity. See AS 11.81.330(a); AS 11.81.320 and Cleveland v. Anchorage, 631 P.2d 1073, 1078-79 (Alaska 1981). By incorporating a standard of reasonableness, our law necessarily accepts the consequent fact that the lawfulness of a defendant's actions may not be capable of precise assessment in advance. As Justice Holmes said in Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232 (1913): [T]he law is full of instances where a man's fate depends on his estimating rightly [ — ] that is, as the jury subsequently estimates it [ — ] some matter of degree.... [For example,] [a]n act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it by common experience in the circumstances known to the actor. Thus, some degree of imprecision inevitably attends the use of a "reasonableness" standard. When a statute is challenged as unconstitutionally vague, one important consideration is whether the definition is worded as explicitly as possible to achieve the legislative purposes. United States v. Petrillo, 332 U.S. 1, 6-7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877, 1882 (1947). The Constitution does not require impossible exactitude. As noted by Justice Frankfurter, dissenting in Winters v. New York, 333 U.S. 507, 524-25, 68 S.Ct. 665, 674, 92 L.Ed. 840 (1948), [Wjhether [a statute's] notice is or is not "fair" depends upon the subject matter to which it relates. Unlike the abstract stuff of mathematics, or the quantitatively ascertainable elements of much of natural science, legislation is . concerned with the multiform psychological complexities of individual and social conduct. Or, as stated more recently by Justice Marshall in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), lawmakers are "[c]ondemned to the use of words", and for this reason courts can not expect statutes to display "mathematical certainty". The Constitution does not require "meticulous specificity" in the wording of statutes; rather, statutory language can incorporate "flexibility and reasonable breadth". 408 U.S. at 110, 92 S.Ct. at 2300. For example, in Grayned the Supreme Court upheld an ordinance forbidding people from making any noise or diversion that "disturbs or tends to disturb the peace or good order" of a school session or class. Id., 408 U.S. at 107-08, 92 S.Ct. at 2298. The Court concluded: [I]t is apparent from the statute's announced purpose that the measure [of criminality] is whether normal school activity has been or is about to be disrupted. We do not have here a vague, general "breach of the peace" ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school. Given this "particular context," the ordinance gives "fair notice to those to whom [it] is directed." Grayned, 408 U.S. at 112, 92 S.Ct. at 2301 (quoting American Communications Assn. v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 691, 94 L.Ed. 925 (1950)). The "particular context" in Peratrovich's case is a statutory scheme that regulates (and generally prohibits) sexual contact with minors. In AS 11.81.900(b)(53)(B), the Alaska Legislature declared that even when the State proves that the defendant knowingly engaged in sexual contact with a minor, this contact will not be criminal if the contact might reasonably be construed as part of normal caretaker responsibilities. The problem facing the drafters of this statutory language was that there is a range of situations in which sexual contact with a minor might reasonably be construed as justified. As this court recognized in Van Meter v. State, 743 P.2d 385, 391 (Alaska App. 1987), "the legislature . responded to the problem of differentiating between a wide variety of innocent touchings" when it enacted the exceptions fisted in AS 11.81.900(b)(53)(B). It is difficult to perceive how the legislature might have been more precise in describing the types of sexual contact that adults should be allowed to have with minors. Peratrovich suggests that an alternative solution to the problem would be to return to former law, when "sexual contact" required proof of the defendant's intent to obtain sexual gratification. See Flink v. State, 683 P.2d 725 (Alaska App.1984). However, such a statute would not achieve the same legislative purposes as current AS 11.81.900(b)(53). The disturbing truth is that some criminal defendants will try to justify a wide variety of exploitative, degrading, or violent sexual activity with minors by claiming that the activity was intended as a form of sex education or other "normal . interaction with a child", and not as a way to obtain sexual gratification. For example, in S.B. v. State, 706 P.2d 695 (Alaska App.1985), the defendant engaged in multiple acts of sexual penetration and contact •with his seven-year-old daughter. A psychologist who evaluated the defendant declared that it was quite possible that the defendant had no conscious sexual motivation for these acts: [I]t is possible that Mr. B. acted out of a set of sexual feelings with respect to his daughter that he was not consciously aware of and is presently denying. It is . also possible that Mr. B. [subjectively believed] that he could provide [sexual education] to his daughter and actually did not believe himself to be sexually molesting her as he demonstrated sexual functioning to her. S.B., 706 P.2d at 697. See also Potts v. State, 712 P.2d 385, 387 (Alaska App.1985), in which the defendant claimed that his acts of sexual contact with his nine-year-old daughter "were intended only to satisfy [the daughter's] natural curiosity about sex" and were "educational in nature". Because, depending upon the psychology of the offender, it may be impossible to prove beyond a reasonable doubt that the defendant's acts of sexual abuse were motivated by a conscious intent to obtain sexual arousal or gratification, the American Bar Association's National Legal Resource Center for Child Advocacy and Protection recommended that child sexual abuse statutes be drafted as general intent crimes with exceptions for particular types of sexual touching. In Recommendation 1.6 of its Recommendations for Improving Legal Intervention in IntraFamily Child Sexual Abuse Cases (1982), the National Resource Center advocated a statute much like Alaska's: The following acts should constitute sexual abuse of a child: (4) the intentional touching of the gem-íais or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of either the child or the perpetrator, EXCEPT that, it shall not include: (a) acts which may reasonably be construed to be normal caretaker responsibilities, interactions with, or affection for a child; or (b) acts intended for a valid medical purpose[.] Id. at 13-14. The commentary to this proposal states, in relevant part: It . was decided that for acts involving sexual touching [Section (4) ], the intent or purpose of the touching would not be included [as an element of the crime]. One reason for this choice is that the motivation for committing sex offenses varies widely and may encompass some purpose which would not be stated. Further, it was felt that a more logical method was to include language as to what contact should be exempted from inclusion in the definition. The reasoning is that prosecutors should not have to prove as an element of the crime the perpetrator's intent or purpose when he sexually touches a child. Thus, language often used in statutes such as "for the purpose of sexual arousal or gratification," or other similar purpose is not included as an essential element of the crime. Some reform statutes have dealt with the above problem by stating that .the touching must be intentional, and "for the purpose of sexual arousal or gratification." [Alternatively], some statutes use language that the touching must be "reasonably construed as being for the purpose of sexual arousal or gratification." One court's interpretation of the latter terminology is that it be "read as a substantial lessening of the prosecutor's burden of proof; the touching must be intentional but the actor's purpose need not be proven to the jury. On the contrary, the jury may find that the actor's actual purpose was other than sexual gratification, e.g., anger [or] revenge, but still find that sexual contact had taken place." Indeed, one court stated that such language is included in the statute "in order to exclude from its coverage affectionate caresses of a child." Since this appears to be the legislative intent in using "for the purpose of' language, it was felt that a better approach is to specifically state the exclusion, and place the burden on the defendants to prove that the acts did not have a sexual purpose. Id. at 15-16 (footnotes omitted). (Quoted in Flink v. State, 683 P.2d at 731-32.) In Flink, this court ruled that Alaska's prior definition of "sexual contact" impliedly contained the requirement that the defendant act with the specific intent of achieving sexual arousal or gratification. 683 P.2d at 733. Alaska's current definition of "sexual contact" represents the legislature's response to Flink: In passing [current AS 11.81.900(b)(53) ], the legislature intends to change the result reached by the Alaska Court of Appeals in Flink v. State [.] In the Flink case, the court ruled that the legislature intended that crimes involving sexual contact be specific intent crimes.... In adopting [this new definition of "sexual contact"], the legislature intends to reaffirm that crimes involving sexual contact and penetration are general intent crimes. 1984 Senate Journal, pp. 3387-88. While the legislative commentary does not explicitly refer to the ABA National Resource Center's recommendations, the language of AS 11.81.900(b)(53)(B) appears to be based on the ABA's proposed statute. In particular, we note that the wording of the statutory exception for acts of sexual contact that "may reasonably be construed to be normal caretaker responsibilities" for a child, or "interactions with" a child, or "affection for a child" is taken directly from the ABA recommendations — thus indicating that the Alaska Legislature shared the ABA's concerns about the potential problems of a "specific intent" formulation. From the foregoing discussion, it is clear that the legislature has a legitimate interest in prohibiting certain types of sexual contact with minors even when it can not be proved that the defendant acted with the conscious intent of achieving sexual arousal or gratification. The wording of current AS 11.81.900(b)(53) — that is, a general definition of the prohibited contact, accompanied by a list of the categories of sexual contact that are permitted — is a reasoned response to the definitional problem confronting the legislature. We note, moreover, that if a jury has a reasonable doubt as to whether a defendant's conduct fits within one of the exceptions, the defendant is to be acquitted. See AS 11.81.900(b)(15). For these reasons, we uphold the constitutionality of the definition of "sexual contact" — and, specifically, the portion of the definition that exempts sexual contacts that "[might] reasonably be construed to be normal caretaker responsibilities". See Matter of Appeal in Maricopa County, 143 Ariz. 178, 692 P.2d 1027, 1034-35 (App. 1984) (upholding the constitutionality of the phrase "parental responsibilities" in a child welfare statute); In re Aschauer's Welfare, 93 Wash.2d 689, 611 P.2d 1245, 1249-1250 (1980) (holding that the phrases "proper parental control" and "proper maintenance, training and education", when evaluated in the entire context of Washington's child welfare laws, were not unconstitutionally vague); In the Interest of Brooks, 228 Kan. 541, 618 P.2d 814, 817-820 (1980) (upholding the constitutionality of "unfit" in a statute allowing termination of parental rights). See also State v. Mills, 52 Or.App. 777, 629 P.2d 861 (1981) (upholding the constitutionality of the phrase "leaves the child unattended . for such period of time as may be likely to endanger the health or welfare of such child" in the Oregon child neglect statute). We additionally note that, even if there are difficult cases at the outer limits of what might reasonably be construed to be "normal caretaker responsibilities", Peratro-vieh's conduct falls within the core of the conduct prohibited by the sexual abuse of a minor statutes. See Holton v. State, 602 P.2d 1228, 1236-37 (Alaska 1979). Peratro-vieh claims that it was his "responsibility" as a "caretaker" to touch his teenage stepgrand-daughter's breast, against her will, to illustrate where the girl's grandmother's tumors might be. This claim is implausible on its face. We therefore reject Peratrovich's attack on the statutory definition of "sexual contact", and we uphold his conviction for third-degree sexual abuse of a minor. We now turn to Peratrovich's attacks on his sentence. Sentencing Issues At sentencing, Judge Thompson noted that Peratrovich's victim was "dreadfully disturbed" over the sexual abuse. When the judge announced the sentence, he ordered Peratrovieh to "pay [any] counseling costs of the victim . to the extent that she expends monies for counseling" up to a maximum of $5000. On appeal, Peratrovieh argues that Judge Thompson failed to inquire into Pera-trovich's ability to pay this amount of money. We see a more fundamental problem with the restitution order. Under AS 12.55.045(a), a sentencing court may order the defendant to pay "restitution to the victim or . to a public, private, or private nonprofit organization that has provided or is or will be providing counseling . services to the victim". It seems apparent that, under this statute, a defendant may be required to compensate the victim for future counseling expenses. Nevertheless, this court has repeatedly held that a restitution order must be based on substantial evidence of monetary loss or expense, not mere speculation. Noffsinger v. State, 850 P.2d 647, 650 (Alaska App.1993); Harris v. State, 678 P.2d 397, 408 (Alaska App.1984), rev'd on other grounds sub nom., Stephan v. State, 711 P.2d 1156 (Alaska 1985). More particularly, in Lawrence v. State, 764 P.2d 318, 322 (Alaska App.1988), this court disapproved an award for future counseling expenses that was made in the absence of evidence firmly establishing the need for and the amount of such expenses. Compare Reece v. State, 881 P.2d 1135, 1138 (Alaska App.1994), where this court upheld an order requiring the defendant to make restitution for future counseling when the need for counseling and the cost of counseling were adequately established in the sentencing record. In Peratrovich's case, despite Judge Thompson's surmise that the victim might need counseling, the sentencing record con tains no evidence that the victim will undergo counseling, nor does it contain any evidence concerning the duration or cost of such counseling. We therefore conclude that the present record does not support the restitution order, and we vacate that portion of the sentence. We remand this issue to the superior court. If, on remand, there is evidence that more firmly establishes (1) that the victim will seek counseling, and (2) the expected cost of such counseling, then Judge Thompson may wish to revisit the issue of restitution. As an additional condition of Peratrovich's sentence, Judge Thompson ordered Peratro-vich not to return to Prince of Wales Island (the site of the offense): I'll order that, during the period of probation, you not return to Prince of Wales. I sort of hate to do that; I hate to exile you from there. But if you think about this realistically, I don't think you want to go back over there right now anyway. It would not be good for anybody in this case, and I think it would be masochistic for you to attempt to return there at this point. Maybe five years from now, maybe things will be different. But [for] right now, stay away from there. The written judgement does not faithfully incorporate Judge Thompson's oral order. Rather, according to the written judgement, Peratrovieh may return to Prince of Wales Island if he obtains the written permission of his probation officer. The record does not disclose whether this variance is a clerical error or instead manifests Judge Thompson's decision to alter his original order. As noted above, Peratrovieh's home is in Klawock. However, at the time of the sentencing hearing Peratrovieh and his wife were living in Ketchikan so that Mrs. Pera-trovich could be closer to medical facilities. Judge Thompson forthrightly categorized his order as Peratrovich's "exile" from Prince of Wales Island. Because this condition of probation bars Peratrovieh from returning to his residence in Klawock, it affects Peratrovich's basic rights of property, travel, and association. Before Judge Thompson could forbid Peratrovieh from returning to his home, the judge was obligated to affirmatively consider and have good reason for rejecting lesser restrictions (such as forbidding Peratrovieh to be in the company of minors without independent adult supervision). See Dawson v. State, 894 P.2d 672, 680-81 (Alaska App.1995) (a probation condition denying defendant any unsupervised association with his wife was unduly restrictive of his liberty). We therefore vacate this condition of Peratrovich's probation and remand this issue to Judge Thompson for his reconsideration. Conclusion Peratrovich's conviction for third-degree sexual abuse of a minor is AFFIRMED. The two challenged provisions of his sentence are VACATED; this case is REMANDED to the superior court so that the court can reconsider the restitution order and the probation condition barring Peratrovieh from returning to Prince of Wales Island.

10343718

Kathy NIELSON and Loren Domke, Husband and Wife, Appellants, v. David BENTON and Lori Telfer, Husband and Wife, Appellees

Nielson v. Benton

1995-09-15

No. S-6107

1049

1055

903 P.2d 1049

903

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Kathy NIELSON and Loren Domke, Husband and Wife, Appellants, v. David BENTON and Lori Telfer, Husband and Wife, Appellees.

Kathy NIELSON and Loren Domke, Husband and Wife, Appellants, v. David BENTON and Lori Telfer, Husband and Wife, Appellees. No. S-6107. Supreme Court of Alaska. Sept. 15, 1995. Rehearing Denied Sept. 28, 1995. Loren Domke, Loren Domke, P.C., Juneau, for AppeUants. Thomas W. Findley, Carobne Crenna, Dillon & Findley, P.C., Juneau, Sitka, for Appel-lees. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3458

20734

OPINION COMPTON, Justice. I. INTRODUCTION This appeal arises out of a faded real estate transaction. Its resolution turns on the question of whether a dispute over the seaward boundary of a property, potentiaby giving the State of Alaska (State) a claim to part of the property, constitutes a cloud on title justifying rescission of the sales agreement. The superior court held that there was a cloud on title and granted rescission. We affirm in part, vacate in part, and remand for further proceedings relating to attorney's fees. II. FACTS AND PROCEEDINGS Lori Telfer and David Benton entered into a contract to purchase real property from Loren Domke and Kathy Nielsen. The property in question is designated Lot 56 and is located at 17295 Glacier Highway, abutting Lena Cove seventeen miles from Juneau. On February 12, 1992, the parties entered into a contract designated "Earnest Money Receipt and Agreement to Purchase." The contract bound Telfer and Benton to purchase Lot 56 for $165,000, subject to terms and conditions stated therein. It set the closing for May 29. The following addendum to the contract was included: Buyers shall have an unconditional right to revoke this agreement without forfeiture of earnest money for any of the following: (a) structural defects; (b) clouds on the title; (c) unrecorded encroachments or unrecorded easements; (d) unavailabihty of bank financing due to conditions of the property. After signing the contract Telfer and Benton initiated various procedures necessary to secure financing. The loan process and negotiations with the owner of property adjacent to 17295 Glacier Highway brought to bght a variety of defects in the property. In May the discovery of these previously undisclosed imperfections caused Telfer and Benton to notify Domke and Nielson that they wished to rescind the contract. Domke and Nielson informed Telfer and Benton that they would treat the latter's actions as a repudiation of the contract and would file suit if an assurance of performance was not forthcoming. Upon reviewing the letter from Domke and Nielson, Telfer and Benton's attorney advised them that they might not be able to legally withdraw from the contract at that time. Telfer and Benton notified Domke and Nielson that they would continue to seek financing. With the passage of time more deficiencies in the property surfaced, including the discovery that a seawall protecting the property and a section of the front yard potentially encroached on State-owned land. As-built surveys of the lot prepared in 1981 (Plat of June 22, 1981) and 1992 (Plat of July 29, 1992) indicated that the seaward boundary of the lot was a fine running across the front yard short of the seawall. A plat prepared on May 5, 1993 showed the seaward boundary of the lot to be beyond the seawall. According to two of the three surveys, it appeared that the State owned some portion of the lot. It is not disputed that Nielson and Domke had represented that the property they owned extended out to and included the seawall. Telfer and Benton consulted another attorney, who sent Domke and Nielson a letter expressing his clients' concerns with the property. The letter specifically communicated distress over the seawall and front yard. The letter informed Domke and Niel-son that Telfer and Benton wished to rescind the earnest money agreement. Domke and Nielson responded that the insufficiencies identified were insignificant and that they expected Telfer and Benton to continue to perform under the contract. To secure Telfer and Benton's performance, Domke and Nielson filed the suit from which this appeal arises. Telfer and Benton responded by informing Domke and Nielson that before they would proceed with the loan application process, they would ask the court to ensure that the property's deficiencies would be remedied. Telfer and Benton's loan application was submitted and denied in September. Once the loan application was denied, Domke and Nielson demanded that Telfer and Benton seek a "non-conforming home loan." Telfer and Benton chose not to do this. Initially Domke and Nielson sought both specific performance of the Earnest Money Receipt and Agreement to Purchase and damages for breach of contract. Telfer and Benton responded with a motion for summary judgment seeking rescission of the contract. Later Domke and Nielson filed a cross motion for summary judgment and withdrew their request for specific performance. The court granted Telfer and Benton's motion for summary judgment. The court found that the contract language itself provided grounds for rescission. The court reasoned that the disparate conclusions of the three surveys could only be resolved through an action to quiet title. Thus, the uncertainty over the seaward boundary of the property was a cloud on the title justifying rescission of the contract. Accordingly, the court granted rescission and dismissed the other claims by both parties. Domke and Nielson moved for reconsideration after the State announced that it would not defend against the quiet title action. The motion was denied and this appeal followed. III. DISCUSSION A. Standard of Review In reviewing a grant of summary judgment, this court must determine whether any genuine issue of material fact exists and whether on the established facts the moving party is entitled to judgment as a matter of law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). We review rife novo an order granting summary judgment. Tongass Sport Fishing Ass'n v. State, 866 P.2d 1314, 1317 (Alaska 1994). B. The Superior Court Correctly Concluded That There Was a Cloud on Title to 17295 Glacier Highway Justifying Rescission of the Sales Contract at Issue Under the plain language of the Earnest Money Receipt and Agreement to Purchase, Telfer and Benton are entitled to rescission of the agreement. The revocation is provided for by the following language included in the addendum to the sales agreement: Buyers shall have an unconditional right to revoke this agreement without forfeiture of earnest money for any of the following: clouds on the title. (Emphasis added). The superior court found that the uncertainty over the property's boundary line created a cloud on title. The court found that "the only way to resolve the uncertainty of the extent of Lot 56 [17295 Glacier Highway] is for the owner of the lot to bring an action to quiet title." The court reasoned that where a lawsuit is necessary to determine title to part of the property, there is clearly a cloud on the title to that property. The superior court was correct. Domke and Nielson argue that there was no cloud on title to the property, because there was no uncertainty over the seaward boundary. They claim that extending the yard over the original meander line did not create uncertainty in the title, because at the time of oral argument no evidence of uncertainty was produced. It is their position that the location of the seaward property boundary was at the mean high water mark, as a matter of law, and that the May 1993 survey clearly established this line to be down the beach from the yard. They further argue that the certainty of the seaward boundary was established when the Department of Natural Resources (DNR) refused to defend the quiet title action. Domke and Nielson's argument relies on the fact that after they filed a quiet title action, DNR refused to defend the action. However, the validity of the State's potential claim, after the quiet title action was brought, is not pertinent. "A cloud on title is an outstanding claim or incumbrance which, if valid, would affect or impair the title of the owner of a particular estate." Newpar Estates v. Barilla, 161 N.Y.S.2d 950, 952 (N.Y.Sup.Ct.1957), rev'd on other grounds, 4 A.D.2d 186, 164 N.Y.S.2d 132 (N.Y.App.Div. 1957). To be a cloud on title the claim need not be valid, it need only be colorable until removed by a quiet title action. See Beal v. Mars Larsen Ranch Corp., Inc., 99 Idaho 662, 667, 586 P.2d 1378, 1383 (1978) (a cloud on title is an outstanding instrument, record, claim, or encumbrance which although actually invalid or inoperative, may nevertheless impair the title to property). A cloud on title is removed when "shown by extrinsic proof to be invalid or inapplicable to the estate in question." 74 C. J.S.. Quieting Title § 12 (1994). The test for whether there is a cloud on title is whether the owner would be required to offer evidence to defeat an action based on the alleged cloud. Allott v. American Strawboard, 237 Ill. 55, 86 N.E. 685, 688 (1908); Haggart & McMasters v. Chapman-Dewey Land Co., 77 Ark. 527, 92 S.W. 792 (1906); 74 C.J.S. Quieting Title § 13 (1951). According to two of the surveys, the State had a colorable claim to some portion of the property. The State potentially owned this land, because the Federal Government had granted to the states all submerged lands within their boundaries. See 43 U.S.C. § 1311 (1986). The appearance that the State had at least a colorable claim to part of the lot was created by the July 1992 and June 1981 surveys, coupled with statements made by a DNR employee prior to the filing of the quiet title action that the seawall and yard encroached on State land. Both the superior court and the DNR postulated that the only way to ensure that the owner of this property owned the entire front yard was to bring a quiet title action. Such an action would have required the owner to present extrinsic evidence. The mere fact that this evidence would be required to clear the title is enough to create a cloud on title. See 74 C.J.S. Quieting Title § 13 (1951). C. Domke and Nielson Were Not Wrongfully Denied an Opportunity to Cure the Title to 17295 Glacier Highway Generally, a buyer of real property who discovers defects in the title must make those defects known to the seller and must allow the seller a reasonable time to cure. Callister v. Millstream Assocs., Inc., 738 P.2d 662, 664 (Utah App.1987). However, the contract itself may define the period during which the seller may cure a defect. See Bailey v. First Mortgage Corp. of Boca Raton, 478 So.2d 502 (Fla.App.1985). Thus, the question is not what remedies equity might provide Domke and Nielson, but whether the contract requires or implies that Domke and Nielson be allowed an opportunity to cure. The contract does not expressly designate any time within which the sellers have an opportunity to cure defects in the title. Moreover, the plain language of the contract gives Benton and Telfer "an unconditional right to revoke this agreement without forfeiture of earnest money for . clouds on title." This express grant to the buyers of an unconditional right to revoke is inconsistent with an implied right to cure in the sellers. We will not engage in legal fictions by interpreting the simple language of this addendum to require conditions precedent to repudiation. We interpret "unconditional" to mean without limitation or restriction. See Black's Law Dictionary 1367 (5th ed. 1979); Webster's II, 1255 (1988) ("Being without conditions or limitations: absolute."). Thus, Benton and Telfer had an unconditional right to revoke upon discovering a cloud on title. They were not obligated to allow Nielson and Domke an opportunity to remove this cloud. D. The Attorney's Fee Award Apparently applying the version of Alaska Civil Rule 82 in effect prior to July 15, 1993, the superior court awarded Benton and Telfer $10,653.67 in costs and attorney's fees. Benton and Telfer claimed that they had spent a total of $21,631.16 on costs and attorney's fees. The award constituted approximately fifty percent of their total expenditures. Domke and Nielson challenge the award on three grounds: (1) the court erred in varying and increasing the fee award from the statutorily mandated twenty percent without explaining its reasons for doing so as required by amended Civil Rule 82; (2) the court was unjustified in awarding more than twenty percent of the actual fees; and (3) the court erred in awarding paralegal fees. The language of current Civil Rule 82 became effective on July 15, 1993. According to Civil Rule 98, rule changes "govern all civil actions and proceedings thereafter commenced and so far as just and practicable all proceedings then pending." Alaska R.Civ.P. 98 (1994). Summary judgment was entered for Benton and Telfer on June 7, 1993. The parties submitted moving papers in June seeking a determination of which were the prevailing parties for the purpose of taxing costs and awarding attorney's fees. Benton and Telfer were adjudged the prevailing parties on August 16, 1993. They then filed motions for attorney's fees and costs, with documentation. Domke and Nielson opposed the motions in two pleadings, arguing that under amended Rule 82, effective July 15, 1993, no variance from the schedule should be allowed. Attorney's fees were awarded on November 1, 1993. The superior court did not indicate under which version of Rule 82 it calculated its award, but we infer that the court applied the former version, due to the amount awarded and the manner in which it was awarded. Although this "civil action or proceeding" commenced before the adoption of amended Rule 82, Benton and Telfer advance no persuasive reason — indeed, virtually no reason— why it is not just and practicable to apply amended Rule 82 to this proceeding, which was pending when the rule was amended. They simply assume that it did not apply to this proceeding, and thus it would have been a mistake not to have focused arguments before the superior court on the former version of Rule 82, instead of amended Rule 82. In the alternative, they argue that even under amended Rule 82, there is a basis for sustaining the superior court. They point out that under either version of Rule 82, the fee awarded is ultimately determined at the discretion of the trial judge. Thus, it cannot be assumed that requiring the trial court to apply amended Rule 82 would change the amount of attorney's fees awarded. It is true that the superior court might have awarded the same amount under amended Rule 82 as it did apparently under former Rule 82. However, we cannot indulge in speculation. Prior to the effective date of amended Rule 82, the parties had only addressed the prevailing party issue. No ink had yet been spilled on application of either version of the Rule to the particular facts of this case. Benton and Telfer do not claim reliance on former Rule 82 in making any decisions with respect to the litigation. It is "just and practicable" to apply amended Rule 82 to this pending proceeding. We conclude that the award of attorney's fees must be vacated and remanded to the superi- or court for redetermination in accordance with amended Rule 82. IV. CONCLUSION The superior court's grant of summary judgment, is AFFIRMED, because there existed a cloud on title which, under the contract, allowed the buyers an unconditional right to rescind the contract. The superior court did not err in denying Domke and Nielson an opportunity to cure the title they tendered. The attorney's fee award made under former Civil Rule 82(b)(3) is VACATED and the issue REMANDED to the superior court for redetermination in accordance with amended Rule 82. . Although Benton and Telfer discuss other alleged misrepresentations about the property, the only imperfection pertinent to this appeal is the dispute over the seaward boundary of the property. . The State's claim to this land results from the Federal Government's grant to the states of all submerged lands within their boundaries. See 43 U.S.C. § 1311 (1986). .In a separate action Domke and Nielson filed a suit to quiet title to the front yard and seawall. The court found the filing of this action "to be at least a tacit admission by the plaintiffs that there was, indeed, a cloud upon their title." After summary judgment was granted in the instant case, the Department of Natural Resources, Division of Lands, disclaimed in writing any interest in defending the quiet title action. . See also Vanguard. Equities, Inc. v. Sellers, 587 S.W.2d 521, 525 (Tex.1979) ("a cloud on title is an outstanding claim or encumbrance apparently valid, but in fact, invalid"); Pepper v. Pyramid Oil & Gas Corp., 287 So.2d 620, 623-24 (La.App.1973); York v. Newman, 2 N.C.App. 484, 163 S.E.2d 282, 285 (1968) ("A cloud upon title . shows prima facie the right of a third party either to the whole or some interest in it, or to a lien upon it."). . Tacitly, Domke and Nielson must also have believed this to be the case because they eventually brought such action. . Domke and Nielson insist that the disparity between the June 1981, July 1992, and May 1993 surveys only created the possibility of a boundary dispute with the State and this possibility is not sufficient to create a cloud on title. They are correct that mere apprehension on the part of a property owner that an adverse claim of title or interest may be asserted against him. does not constitute a cloud on title. See Frontage, Inc. v. Allegheny County, 400 Pa. 249, 162 A.2d 1, 6 (1960); Lansburgh v. Market St. Ry. Co., 98 Cal. App.2d 426, 220 P.2d 423 (1950). However, a claim which causes "reasonable fear that it may be asserted against the owner injuriously" does constitute a cloud on title. See I. Blum, Annotation, What Constitutes Cloud on Title Removable in Equity, 78 A.L.R. 24, 44 (1932); 74 C.J.S. Quieting Title § 13 (1951). Here there was more than a mere apprehension that the State might assert a claim to part of Lot 56. The 1992 and 1981 surveys and the State's advice that a quiet title action was necessary created a reasonable fear that a claim might have been asserted against the owner of the property. Finally, Domke and Nielson contend that only recorded instruments or encumbrances should give rise to clouds on title. This is not the law. It has been established in other jurisdictions that clouds on title are not limited to recorded interests. Buttrill v. Stanfield, 198 Okla. 374, 178 P.2d 889 (1947); Gardner v. Buckeye Sav. & Loan Co., 108 W.Va. 673, 152 S.E. 530, 532-33 (App. 1930); See also Bank of America Nat. Trust & Sav. Ass'n v. Town of Atherton, 60 Cal.App.2d 268, 140 P.2d 678 (1943). Additionally, this court has in the past assumed that non-recorded interests were clouds on title. See Davis v. Tant, 361 P.2d 763 (Alaska 1961) (referring to a non-recorded cloud on title). . The current Civil Rule 82(b) provides: (2) In cases in which the prevailing party recovers no money judgment, the court . shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred.... (3) The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted. If the court varies an award, the court shall explain the reasons for the variation. Alaska R.Civ.P. 82(b)(2)-(3). . Under Civil Rule 82(b)(2) an attorneys' fee award may include "fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk." Alaska R.Civ.P. 82(b)(2). Benton and Telfer included a $1,864.00 charge for paralegal work in their claim for attorneys' fees. Nielson and Domke contend that the paralegal work listed was secretarial work and not work normally performed by an attorney. They argue that none of this $1,864.00 should be charged as attorneys' fees. On remand the superior court should review the paralegal work charged and determine what portion of this work may be included in the fee award under Alaska Rule of Civil Procedure 82(b)(2). .The prior language of Civil Rule 82 directed that "[s]hould no recovery be had, attorney's fees may be fixed by the court in its discretion in a reasonable amount." Former Alaska R.Civ.P. 82 (1992). The present language provides that a prevailing party who recovers no money judgment in a case without trial shall be awarded twenty percent of its fees, but that this amount may vary "if based on the factors listed [in 82(b)(3)], the court determines a variation is warranted." Alaska R.Civ.P. 82(b)(3) (1994).

10343795

Christopher FULTON, individually and as assignee of Walter E. Clark, Appellant and Cross-Appellee, v. LLOYDS AND INSTITUTE OF LONDON UNDERWRITING COMPANIES, including John Crawley, individually and as representative on behalf of certain underwriters at Lloyds of London subscribing to Policy No. BH0150TAA, Excess Insurance Company, Ltd.; London & Hull Maritime Insurance Co., Ltd.; Cornhill Insurance PLC 'M' A/C; Insurance Company of North America 'G' (UK); The Prudential Group 9; and The Saltica (UK) JA; and Property Marine, Appellees and Cross-Appellants

Fulton v. Lloyds & Institute of London Underwriting Companies

1995-10-06

Nos. S-6284, S-6334

1062

1070

903 P.2d 1062

903

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Christopher FULTON, individually and as assignee of Walter E. Clark, Appellant and Cross-Appellee, v. LLOYDS AND INSTITUTE OF LONDON UNDERWRITING COMPANIES, including John Crawley, individually and as representative on behalf of certain underwriters at Lloyds of London subscribing to Policy No. BH0150TAA, Excess Insurance Company, Ltd.; London & Hull Maritime Insurance Co., Ltd.; Cornhill Insurance PLC ‘M’ A/C; Insurance Company of North America ‘G’ (UK); The Prudential Group 9; and The Saltica (UK) JA; and Property Marine, Appellees and Cross-Appellants.

Christopher FULTON, individually and as assignee of Walter E. Clark, Appellant and Cross-Appellee, v. LLOYDS AND INSTITUTE OF LONDON UNDERWRITING COMPANIES, including John Crawley, individually and as representative on behalf of certain underwriters at Lloyds of London subscribing to Policy No. BH0150TAA, Excess Insurance Company, Ltd.; London & Hull Maritime Insurance Co., Ltd.; Cornhill Insurance PLC ‘M’ A/C; Insurance Company of North America ‘G’ (UK); The Prudential Group 9; and The Saltica (UK) JA; and Property Marine, Appellees and Cross-Appellants. Nos. S-6284, S-6334. Supreme Court of Alaska. Oct. 6, 1995. Randall E. Farleigh, Farleigh & Shambu-rek, Anchorage, for Appellant and Cross-Appellee. Brewster H. Jamieson, Diane L. Wend-landt, Lane Powell Spears Lubersky, Anchorage, for Appellees and Cross-Appellants. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

4870

29970

OPINION MATTHEWS, Justice. This dispute over insurance coverage for an accident at sea comes to us after the conclusion of suits in state and federal courts and while liquidation proceedings for one insurer are underway in the State of Washington. The findings of the trial court guide us through the maze: FINDINGS OF FACF[ ] I.THE INJURY 1. In early January 1986, the fishing vessel JAMIE LYNN set out from Cordo-va, Alaska, toward the Alaska Peninsula. On board were captain Christopher Clark and crew member Christopher Fulton, plaintiff in this action. 2. The vessel stopped in Kodiak to pick up crabbing gear and to fish for tanner crab, and Clark hired Dennis Carlsen and Karl Steen to join the crew. 3. The JAMIE LYNN subsequently stopped in Cold Bay, where welder Brian Shaw came aboard to do some repair work. When the vessel left Cold Bay, Clark retained Shaw to help with the crabbing, raising the crew complement to four. 4. Sometime during the beginning of March, 1986, the JAMIE LYNN passed north through the Aleutian Islands and headed toward the Pribilof Islands to fish for opilio crab. 5. Along the way, the crew dropped its load of about 100 crab pots in strings between a half mile and ten miles long. 6. Exactly where the crab pot strings were placed is unclear from the evidence presented to the court, but the strings were at depths of 60 to 90 fathoms in areas between approximately 166 to 169 degrees west longitude, 55 to 56.5 degrees north latitude. This region lies to the south and east of St. George Island, in the Bering Sea. 7. After the pots were dropped, a storm blew in and the JAMIE LYNN sought shelter at St. Paul Island, northwest of the area where the crab pot strings were located. The vessel remained at St. Paul for several days. 8. When the storm abated somewhat, the JAMIE LYNN set out to find and cheek the strings. 9. On March 9, 1986, the vessel was searching for the strings when plaintiff [Christopher Fulton] slipped and fell, apparently on a loose pipe fitting that had dropped from a bin onto the floor of the engine room. 10. At the time, the wind was blowing at approximately 25 to 50 knots and raising eight- to twelve-foot swells. 11. The exact location of the JAMIE LYNN at the time of plaintiffs injury is an issue of dispute between the parties, but the crew believed the vessel to be in close proximity to the crab pot strings, about 14 to 16 hours from St. Paul Island. 12. Upon determining that plaintiff had injured his back in the fall, Clark turned the vessel about and headed back to St. Paul Island, where the Coast Guard took plaintiff from the JAMIE LYNN to a clinic on shore. 13. The clinic placed a telephone call to Walter Clark, the owner of the vessel, informing him of the situation. Walter Clark arranged to have plaintiff transported by airplane to Anchorage, and then by ambulance to Providence Hospital. After ten days in the hospital, plaintiff returned to Cordova. 14. Plaintiff has since undergone other medical treatment for his injury, and has accrued medical expenses and other damages that are the basis of this lawsuit. II. THE POLICY 15. Beginning in 1984, Walter Clark obtained a $500,000 protection and indemnity (P & I) insurance policy for the JAMIE LYNN through his broker, Northern Marine Insurance (hereinafter "NMI"). 16. The 1984-1985 policy provided, among other things, that the warranted vessel would be engaged in "the tendering and possible halibut longline fishing industry"; that the vessel would be "confined to the waters of Bristol Bay and waters surrounding the Alaska Peninsula, and connecting waters to Cordova"; and that a maximum of three crew members would be aboard the vessel, with any increase over this amount to be reported "immediately upon being advised or aware of same." The policy further provided that the JAMIE LYNN would be laid up between October 1 and April 1. 17. At the time the policy was entered into, Walter Clark indicated to Francis Zemp, solicitor for NMI, that he did not intend for the policy to cover use of crab pot gear. 18. On September 25, 1985, Zemp contacted Walter Clark about renewing the P & I policy for another year. While discussing the renewal with Clark, Zemp marked a renewal application form to indicate no changes to the policy. 19. The actual renewed policy was substantially identical in its provisions to the 1984-1985 policy, with an exception being an amendment to allow the JAMIE LYNN to leave port as of January 1, rather than April 1, although the crew warranty was limited to the period from January 1 to July 1. Additionally, the renewed policy contained a clause requiring certain conditions to be met and maintained during the course of the policy "in the event the vessel engages in crab fishing." 20. Property Marine, from whom NMI sought to obtain the necessary endorsements for the Clark policy, arranged for Pacific Marine Insurance Co. (hereinafter "Pacific Marine") to cover the first $200,-000 of the policy and defendant in this case Lloyds and Institute of London Underwriting Companies (hereafter "Lloyds") to provide the additional $300,000 in excess insurance. 21. The renewed P & I policy extended from November 11, 1985, to November 11, 1986. On January 21, 1986, NMI received an endorsement to the policy with a new subscription page stamped with the words "WARRANTED NO CRABBING." NMI never forwarded the amended subscription page to Walter Clark. III. THE COVERAGE DISPUTE 22. Hoping to resolve the matter without recourse to the insurance policy, Walter Clark did not immediately report Fulton's injury to NMI. 23. In April 1986, Clark obtained an endorsement from Pacific Marine, through NMI, reading: EFFECTIVE 11TH APRIL, THROUGH MAY, IN CONSIDERATION OF ADDITIONAL PREMIUM $3,450. IT IS UNDERSTOOD AND AGREED TO PERMIT THE "JAMIE LYNN" TO ENGAGE IN CRABBING OPERATIONS WITHIN AND AROUND THE PRIBILOF ISLANDS WITH THREE CREW. 24. Clark had paid $9,600 for the renewed P & I policy, which covered a period of six months of fishing operations for the JAMIE LYNN with a crew. Representatives of NMI and Property Marine testified that the high additional premium paid by Clark for a crabbing period of approximately a month-and-a-half reflected the unusual risk attendant with that particular kind of fishing. 25. On July 24,1986, Walter Clark provided general information about Fulton's injury to Zemp at NMI. In a letter with the same date, NMI alerted Property Marine to the "possible claim." In a memorandum dated August 4, 1986, Property Marine notified Pacific Marine of the claim. 26. Pacific Marine assigned adjustor Christine Bottomley to the claim on August 12, 1986. On August 20, 1986, having recognized a potential coverage problem, Bottomley prepared but did not send a reservation of rights letter to Walter and Christopher Clark. On the same day, Bot-tomley called Christopher Clark and told him that coverage could be a problem. 27. On August 26, 1986, Pacific Marine held an internal meeting at which it was decided that Pacific Marine's defense should be assigned to Paul Daigle, an attorney, and that another reservation of rights letter should be drafted. Also on August 26, 1986, plaintiff in the present case filed an action in rem against the JAMIE LYNN and in personam against Christopher Clark, asking for damages arising from plaintiffs injury. 28. On September 4,1986, Daigle hired George Barnum to investigate the claim for Pacific Marine. Barnum conducted interviews between September 12 and September 19,1986 with Walter Clark and the crew of the JAMIE LYNN. 29. On September 8, 1986, Walter Clark notified Pacific Marine that he had retained attorney Michael Schneider to represent him on the claim. On September 12,1986, Walter Clark telephoned Linda Pysher, Bottomley"s supervisor at Pacific Marine, and told her that Christopher Clark had been served with notice of a pre-arrest hearing to be held on September 16, 1986. When Clark indicated that he could not reach Schneider, Pysher suggested that Pacific Marine provide attorney Robert Richmond to represent him at the hearing. On September 15, 1986, Pacific Marine contacted Richmond about representing the JAMIE LYNN and the Clarks on the claim. Beginning the following week, Walter Clark and Richmond entered into correspondence regarding the case. 30. Richmond appeared on behalf of the Clarks at the pre-arrest hearing, after which a warrant for the arrest of the JAMIE LYNN was issued. To avoid arrest, Christopher Clark fled with the JAMIE LYNN. The vessel and its crew were lost at sea during the flight. 31. On September 22, 1986, counsel for Pacific Marine sent a reservation of rights letter to the Clarks. Lloyds sent a letter dated October 15, 1986, notifying the Clarks that Lloyds would provide excess coverage only if Pacific Marine decided to extend primary coverage. 32. On October 6, 1986, Pacific Marine filed a declaratory judgment action in the federal district court against the Clarks, asking for a determination of coverage. Plaintiff in the present ease intervened in the suit. 33. Judge Fitzgerald held a two-week bench trial, at the conclusion of which he found for Pacific Marine on the grounds that the JAMIE LYNN had been engaged in crabbing in the Bering Sea at the time of Fulton's injury, in violation of policy warranties. Judge Fitzgerald also rejected the argument that Pacific Marine was estopped from raising the warranties as a defense by reason of its actions in handling the claim. Final judgment was entered against the Clarks and Fulton on September 7, 1988. 34. The defendants appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit. During the course of the appeal, Pacific Marine went into liquidation, approved Fulton's claim despite the district court's decision, and decided not to file a brief to the Ninth Circuit. 35. Pacific Marine then inquired whether Lloyds wished to pay the costs of preparing and filing an appellate brief. Lloyds chose not to accept Pacific Marine's offer. 36. On September 25, 1991, the Ninth Circuit determined that the case was moot, vacated the district court's decision, and remanded with directions to dismiss. 37. Meanwhile, Fulton's suit against the JAMIE LYNN, Walter Clark, and the estate of Christopher Clark was resolved in the fall of 1988 when the defendants in that case assigned to Fulton their causes of action against their insurers in exchange for a covenant by Fulton not to execute on a judgment against the Clarks, and subsequently the Clarks confessed judgment in favor of Fulton in the amount of $450,000. The assignment provided an exception that Fulton would be allowed to execute against assets of the estate of Christopher Clark conveyed to Walter Clark. 38. On March 5, 1992, Fulton filed the present suit against Lloyds and Institute of London Underwriting Companies and Property Marine, realleging the same causes of action raised in Pacific Marine v. Clark. In the present ease, Fulton alleges that Pacific Marine committed various acts in connection with its defense of the Clarks which precluded Pacific Marine from denying coverage for Fulton's accident. Fulton filed a motion for partial summary judgment seeking a determination that if Pacific Marine would be precluded by its acts in the defense of the Clarks from denying coverage, Lloyds would likewise be precluded. Lloyds opposed the motion and the trial court denied it on the ground that "Pacific Marine cannot be viewed as the agent of [Lloyds].... Because there has been no allegation that [Lloyds], through some kind of consensual arrangement, ever held control over the conduct of Pacific Marine, plaintiffs motion on this issue is DENIED." Both parties agreed to submit the case to the court on the existing record. At the conclusion of the trial the court held that Lloyds was not estopped from denying coverage based on the lack of an agency relationship between Lloyds and Pacific Marine. The trial court then turned to the various coverage defenses asserted by Lloyds. The court concluded that Lloyds' claim that the no assignment clause in the policy had been breached by Walter Clark's assignment of his claim against Pacific Marine to Fulton, its claim that the no crabbing clause had been violated, and its claim that the crew warranty had been violated, were unavailing. However, the court held that the navigational warranty had been violated in that the JAMIE LYNN was outside of the geographical area described in the policy and that its presence outside of that area "significantly increased the risk that plaintiff would be injured in the way that he was injured" because of the rough water in the Bering Sea. The court concluded that the breach of this navigational warranty voided the policy, and thus entered judgment in favor of Lloyds. On appeal, Fulton argues that the trial court erred in concluding (1) that Lloyds was not precluded from denying coverage assuming that Pacific Marine would have been so precluded by its conduct in connection with the defense of the Clarks; and (2) that the navigation warranty was breached and, assuming such a breach, that the breach significantly increased the risk. On cross-appeal, Lloyds argues that the trial court erred in (1) failing to hold that Fulton was collaterally estopped from bringing this case by the federal district court's decision which was subsequently vacated at the direction of the Court of Appeals for the Ninth Circuit; (2) refusing to enforce the no assignment clause of the policy; (3) refusing to enforce the no crabbing warranty; (4) holding that the crew warranty was not breached; (5) refusing to amend the caption of the case by deleting Lloyds' name; (6) refusing to hold that the assignment from Walter Clark to Fulton was invalid because it was accompanied by a covenant not to execute; (7) refusing to admit the statement of Christopher Clark, who was deceased at the time of trial, made to an insurance adjuster as to where the boat was at the time of the accident; and (8) failing to consider the no crabbing warranty as a part of the navigational warranty. Except for the first point raised by Fulton, we have determined that none of these points is meritorious and we determine them summarily. Fulton argues here, as he did before the trial court, that Lloyds was bound by Pacific Marine's decisions and conduct in defending the Clarks under the policy. Fulton points out that there was only one policy with two subscribing insurer groups, and the policy language concerning the defense obligation under the policy makes no distinction between the subscribing insurer groups. Fulton argues: "As a matter of contract law, the duty to defend and related legal eonse-quences flowing from that duty voluntarily assumed under [the policy] are not divisible when they were not separately addressed or divided between [Lloyds] and Pacific Marine under the policy." Lloyds' response is that it occupied the same position as would an insurer which issued a policy of excess insurance because the word excess was used in the policy in connection with Lloyds in various endorsements. Lloyds also argues that "[although the excess insurance was subject to the same terms and conditions as the primary insurance, it was issued as a separate policy of insurance." It is our view that Fulton's argument on this point is correct. Only one policy was issued Walter Clark. It is policy number 85-PI-08744 with a limit of $500,000 for which Clark was charged a single premium of $9,600. The lead paragraph of the policy makes it clear that all of the subscribing companies are subject to the terms and conditions of the policy. The paragraph states: In consideration of the premium hereinafter stated, the various companies named herein, severally but not jointly, do hereby insure the assured named herein, for the amounts and proportions set opposite their respective names. All are subject to the terms and conditions of the forms and endorsements attached herein[.] The attached protection and indemnity endorsement states the following with respect to rights and obligations concerning the defense of claims: In consideration of the premium and subject to the warranties, terms and conditions herein mentioned, this Company hereby undertakes to pay up to the amount hereby insured.... Costs and expenses, incurred with this Company's approval, of investigating and/or defending any claim or suit against the assured arising out of a liability or an alleged liability of the assured covered by this policy. This Company shall have the option of naming the attorneys who shall represent the assured in the prosecution or defense of any litigation or negotiations between the assured and third parties concerning any claim covered by this policy, and shall have the direction of such litigation or negotiations. If the assured shall fail or refuse to settle any claim as authorized by this Company, the liability of this Company shall be limited to the amount for which settlement could have been made. The assured shall at the option of this Company permit this Company to conduct, with an attorney of this Company's selection, at this Company's cost and expense and under its exclusive control, a proceeding in the assured's name to limit the assured's liability to the extent, and in the manner provided by the present and any future statutes relative to the limitation of a ship owner's liability. As both Pacific Marine and Lloyds are subscribing companies to the policy, they are both included within the term "this Company." Under the introductory clause of the policy set forth above they are both "subject to the terms and conditions" of the protection and indemnity endorsement. Policies of insurance are to be construed in accordance with the reasonable expectations of the assured: "The objectively reasonably expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations." Bering Strait School Dist. v. RLI Ins. Co., 873 P.2d 1292, 1295 (Alaska 1994) (quoting Robert Keeton, Basic Text on Insurance Law § 6.3(a), at 351 (1971)). To ascertain reasonable expectations "we look to the language of the disputed policy provisions, the language of other provisions of the insurance policy, and to relevant extrinsic evidence. In addition, we refer to case law interpreting similar provisions." Bering Strait, .873 P.2d at 1295 (quoting Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 66 (Alaska 1977)). An insured in the position of Walter Clark reasonably would expect both insurers to be responsible for and bound by decisions made in "the direction" of "litigation or negotiations," given the fact that there was only one policy and that both subscribing insurers had severally undertaken identical duties under the policy. As between the subscribing insurers, there doubtless was some sort of an understanding that Pacific Marine would have initial defense responsibilities. However, such an understanding would do nothing to change the impression conveyed by the language of the policy that there would be only one defense to which both insurers would be bound since there was only one policy. Our conclusion is consistent with the letter written to the Clarks by Property Marine on behalf of Lloyds shortly after the litigation was commenced. The letter expressed and emphasized Lloyds' view that there was only a single policy rather than separate policies and that Lloyds' liability was dependent on liability of Pacific Marine first being established. The letter stated in part as follows: [I]f Pacific Marine, the primary carrier, determines that the referenced loss is covered and the value of the claim exceeds their primary limit of $200,000, then London will normally respond up to their excess limit. On the other hand, should the primary carrier prove the loss is not covered, then London will not respond. I would point out to you that the primary and excess coverage are not separate policies, and there can be no recovery from London until, and unless, there is recovery from Pacific Marine. As noted above, Lloyds argues that it was in the same position that it would have been had it issued a separate policy of excess insurance because the word "excess" was used in connection with Lloyds in various endorsements in the policy. This argument lacks merit. While excess insurers under policies separate from those issued by primary insurers are often not responsible for the defense of a claim against the insured until the limits of the primary policy are exhausted, this is by no means a blanket rule applicable to all of the permutations in which the primary insurer/excess insurer relationship appears, nor is it independent of the particular language of the policies involved. See, e.g., Signal Cos. v. Harbor Ins. Co., 27 Cal.3d 359, 165 Cal.Rptr. 799, 805, 612 P.2d 889, 895 (1980) ("We expressly decline to formulate a definitive rule applicable in every ease in light of varying equitable considerations which may arise, and which affect the insured and the primary and excess carriers, and which depend upon the particular policies of insurance, the nature of the claim made, and the relation of the insured to the insurers."); Guaranty Nat'l Ins. Co. v. American Motorists Ins. Co., 758 F.Supp. 1394, 1396 (D.Montana 1991), aff'd, 981 F.2d 1108 (9th Cir.1992) (unconditional promise in excess policy to provide a defense binds excess carrier to pro rata defense costs; court "emphasized that the holding in any particular case addressing the issue of allocation of defense costs between primary and excess insurers must be considered in light of the particular facts of each case and the various policies involved."); cf., Alaska Rural Elec. Co-op. Ass'n v. INSCO Ltd., 785 P.2d 1193, 1195 (Alaska 1990) (Excess insurer not required to drop down to. provide primary coverage when primary insurer insolvent "absent policy language to the contrary."). In summary, Fulton's argument is that Pacific Marine violated certain duties owed by an insurer in the defense of its insured and that both Pacific Marine and Lloyds were estopped from relying on policy and coverage defenses. The superior court did not rule on whether any such violations occurred. Instead it held that the presence of such violations would be irrelevant because they would not bind Lloyds. For the reasons expressed above we find that this conclusion is erroneous. However, we do not express any view as to whether there were material breaches of any defense duties under the policy. This point must be determined on remand. REVERSED and REMANDED. . Footnotes and record citations have been omitted. . The allegations of wrongful conduct on the part of Pacific Marine are that it "elected to deny coverage to the Clarks . while failing to notify the Clarks of said intent to deny coverage until after [Pacific Marine] had obtained interviews of the Clarks and information therefrom favorable to [Pacific Marine's] position against the Clarks"; and that when Pacific Marine notified the Clarks of its decision to defend under a reservation of rights to later deny coverage, the Clarks rejected this conditional defense but Pacific Marine nonetheless proceeded to defend the Clarks. . The trial court's factual finding as to the location of the boat at the time of the accident and its conclusion that this location was outside of the warranted policy area is not clearly erroneous. The trial court's conclusion that breach of the navigational warranty as to location significantly increased the risk of an accident such as that suffered by Fulton is likewise not clearly erroneous given the finding that the waters of the Bering Sea where the accident occurred are generally rougher than the areas where navigation was permitted under the policy. Lloyds' collateral estoppel point lacks merit for it ignores the requirement that the issue which has been already litigated must be final. Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987). The Ninth Circuit remanded the district court case "with a direction to dismiss. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 [71 S.Ct. 104, 106, 95 L.Ed. 36] (1950)." In Mun-singwear the United States Supreme Court explained that reversing or vacating judgments as moot and remanding with a direction to dismiss clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary. Id. at 40, 71 S.Ct. at 107. The Ninth Circuit's reference to Munsingwear makes it plain that this is not an appropriate case for application of the doctrine of collateral estoppel. Concerning the policy warranties, the trial court correctly required that the breach of such warranties contribute to the injury or increase the risk of the injury. Highlands Ins. Co. v. Koetje, 651 F.Supp. 346, 347 (W.D.Wash.1987). Cf., Estes v. Alaska Ins. Guar. Ass'n, 774 P.2d 1315, 1318 (Alaska 1989) ("time limit on commencement of suit clauses, notice of loss clauses, proof of loss clauses, and cooperation clauses [in insurance policies] should all be reviewed on the basis of whether their application in a particular case advances the purpose for which they were included"). Lloyds' arguments- concerning its policy and coverage defenses, points 2, 3, 4, 5, 6, & 8, and its evidentiary argument, point 7, are moot in view of our determination that the trial court's holding that the navigational warranty was breached and the breach was material must be affirmed. The trial court's determination concerning the navigational warranty will be dispos-itive unless on remand the court finds that there was a material breach in connection with the defense duties owed the insured which gives rise to an estoppel to rely on policy and coverage defenses. E.g., Sauer v. Home Indem. Co., 841 P.2d 176, 184 (Alaska 1992) ("[Ijnsurance company which wrongfully refuses to defend is liable for the judgment which ensues even though the facts may ultimately demonstrate that no indemnity is due."); Davis v. Criterion Ins. Co., 754 P.2d 1331, 1332 (Alaska 1988) (unjustified denial of coverage "put to an end [insurer's] right to demand compliance by the insured with other terms of the agreement."). If such a breach is found, the estoppel will run to all of the policy and coverage defenses asserted. If not, the insured's breach of the navigational warranty is alone sufficient to negate coverage. Lloyds' argument that its name should have been deleted is erroneous. Lloyds argues that it is "an association of individual insurance companies," rather than an individual insurance company. However, an association may be sued in its common name. Alaska R.Civ.P. 17(b). Further, Lloyds was named as a subscribing company in the insurance policy. If the association did not wish to be treated as an insurance company, it should not have allowed itself to be named as such. Taggart v. Wachter, 179 Md. 608, 21 A.2d 141, 146 (1941) ("[C]ourts which have had to deal with [associations of individuals exchanging contracts among themselves] have recognized the necessity of treating them to an extent as entities."); Thomas Canning Co. v. Conners' Exch. Subscribers at Warner Inter-Insurance Bureau, 219 Mich. 214, 189 N.W. 214, 219 (1922) ("[A]n action at law against defendant in the associate character and name by which it contracted will lie."); Mountain Timber Co. v. Manufacturing Wood Workers Underwriters, 98 Wash. 167, 167 P. 93, 94 (1917) (nothing in policy limited right to sue association under name policy issued). . For example, the signature lines for endorsen its were written as follows: PACIFIC MARINE INSURANCE/PROPERTY MARINE 100% P & I LLOYDS AND INSTITUTE OF LONDON UNDERWRITING COMPANIES/PROPERTY MARINE 100% EXCESS P & I As another example, the subscription sheet to the policy was divided in three columns; in relevant part it read as follows: AMOUNT INSURED PREMIUM COMPANY, SIGNATURE AND NUMBER $500,000 Protection & Indemnity PACIFIC MARINE INSURANCE CO ./PROPERTY MARINE Protection & Indemnity $9,600.00 agreed % $200,000.00 by-Policy Number: 85 PI 08744 LLOYDS AND INSTITUTE OF LONDON UNDERWRITING COMPANIES/PROPERTY MARINE Protection & Indemnity Included by_ agreed % Policy Number $300,000.00 85 PI 08744 Excess of $200,000.00 . Lloyds' argument that its undertaking to insure was issued as a separate policy of insurance can most charitably be described as puzzling. The record citations furnished by Lloyds do not demonstrate that a separate policy of insurance was issued, no such policy appears in the record, and the existence of a separate policy would be in conflict with the letter written on behalf of Lloyds set forth above at page 1069.

10582799

Marvin Thomas JENNINGS, Appellant, v. STATE of Alaska, Appellee

Jennings v. State

1965-07-28

No. 581

652

656

404 P.2d 652

404

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:35.076971+00:00

CAP

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

Marvin Thomas JENNINGS, Appellant, v. STATE of Alaska, Appellee.

Marvin Thomas JENNINGS, Appellant, v. STATE of Alaska, Appellee. No. 581. Supreme Court of Alaska. July 28, 1965. Warren A. Taylor and Harris R. Buller-well, Taylor & Bullerwell, Fairbanks, for appellant. Thomas E. Fenton, Dist. Atty., and C. L. Craven, Asst. Dist. Atty., Fairbanks, for appellee. Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

2001

11885

DIMOND, Justice. The appellant, Marvin Jennings, was indicted for second degree murder and found guilty by a jury of involuntary manslaughter in connection with the death of Kenneth Anderson. Jennings contends that there was insufficient evidence of guilt to justify submitting the case to the jury and, therefore, that his motion for judgment of acquittal ought to have been granted. Uncontroverted evidence, consisting of photographs of Anderson taken shortly after his death and the testimony of witnesses, showed that both of Anderson's eyes were blackened and swollen shut, that the right side of his face from below the level of the jaw well up into the hairline was bruised and swollen, that there were two small puncture marks between the eyes above the bridge of the nose, that there were lacerations on the forehead and under the right eye, and that the area of the forehead between the eyes was badly swollen. An autopsy revealed the presence of a bloody mass underneath Anderson's scalp on the right side of the skull above the right ear, and the presence of a large adherent blood clot around the base of the brain. Dr. Evans, who performed the autopsy, said that the brain injury was acute, that it would have caused a coma and vomiting, and that Anderson had died as a result of aspiration of the vomitus. Dr. Evans also testified that in his opinion the appearance of Anderson's face and head as he observed them could not have been caused by a single blow, but rather by multiple blows; that the external injuries to the face and head and the internal injuries to the brain occurred at the same time; and that the injuries to the head and brain were sufficient in themselves to cause death. Anderson and Jennings had been in a fight in the latter's home. Jennings testified that he and Anderson had been drinking rather heavily, that Anderson tried to pick a fight and suddenly hit Jennings in the face, that Jennings then hit Anderson one blow on the nose, that in the ensuing scuffle both men fell to the floor with Anderson on the bottom, that the right side of Anderson's head hit a steel hot air register in the floor, and that no further blows were struck. Jennings said that he and his wife lifted Anderson from the floor to a bed where he remained in an unconscious state until an ambulance came and took him to the hospital. Mrs. Jennings, called as a witness by the State , told substantially the same story as her husband, except that she did not know whether or not Anderson had fallen on the hot air register. The ambulance driver who delivered Anderson to the hospital testified that Jennings had told him that Anderson had had a few drinks and had fallen down and struck his head on a desk a couple of times. A state police officer who investigated the incident testified that Mrs. Jennings had shown him where Anderson had fallen to the floor, and that there was no hot air register or any kind of a grate near that area. In Bush v. State we said: On a motion for a judgment of acquittal the judge must take the view of the evidence and the inferences therefrom most favorable to the state. If he determines that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt, then he must submit the case to the jury. [Footnotes omitted.] We hold that the evidence was sufficient to warrant submitting the case to the jury on the principal charge of second degree murder. Anderson's injuries were such that fair minded persons could conclude beyond a reasonable doubt that the account of the altercation given by Jennings and his wife was less than the whole truth, and that Jennings, purposely and maliciously and without justification, had kicked or beaten Anderson with such force as to cause his death. The State's case against Jennings was entirely circumstantial, i. e., Jennings' guilt had to be inferred from evidentiary facts which did not include the testimony of any witness who observed Jennings inflict the injuries which caused Anderson's death. We held in Davis v. State that where evidence of guilt was all circumstantial, it must be such as to exclude every reasonable theory consistent with the accused's innocence. Jennings contends that the evidence here did not meet that test. This contention is disposed of by what we have said above as to the evidence being sufficient to warrant submission of the case to the jury. The test set down in the Davis case is equivalent to the rule established in Bush v. State , to the effect that a case should be submitted to the jury only if fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt. If they could not differ, but must necessarily have such a doubt, then a judgment of acquittal should be granted. If the circumstantial evidence here had been such as to permit a reasonable inference that Anderson's fatal injuries were caused by events or circumstances other than a beating inflicted by Jennings, a reasonable doubt as to Jennings' guilt would in fact exist. Fair minded men could not then reasonably have differed on the question of whether there existed a reasonable doubt of Jennings' guilt, and therefore a judgment of acquittal would have been required. But under the evidence, Anderson's injuries and death could not reasonably be accounted for by any causes which would exonerate Jennings from responsibility.. Jennings contends that Anderson could have received his injuries when he fell and hit his head and face on a heat register.. Such a theory is completely unrealistic, considering the extensive nature of the damage to Anderson's head and face as-testified to by witnesses and as shown by the photographs admitted into evidence. The indictment for second degree murder charged that Jennings "did wilfully, unlawfully, feloniously, purposely and maliciously kill one Kenneth P. Anderson by beating-him with his fists and kicking him with his feet about the bead." Jennings contends that under this indictment he could be convicted only of second degree murder, voluntary manslaughter or assault and battery, and that it was error for the court to instruct the jury as to the crime of involuntary manslaughter. Criminal Rule 31(c) provides that "The defendant may be found guilty of an •offense necessarily included in the offense charged An offense is necessarily included in the offense charged where the former is of less magnitude than the latter but the gravamen of the two offenses is the same , or where one could not have •committed the offense charged without also having committed the offense of lesser magnitude. In the court's instructions to the jury involuntary manslaughter was defined as the killing of a human being in the commission of an unlawful act, but without premeditation, deliberation, malice or specific intent to kill. The gravamen of involuntary manslaughter, as so defined, is a homicide which is unlawful — one that is not excusable under the law. Second degree murder is also a homicide which is unlawful — one that is not excusable under the law. It is true that second degree murder requires malice and a speicfic intent to kill, whereas involuntary manslaughter •does not. But this difference relates only to the state of mind of the accused and bears upon the degree of punishment. The gravamen of the two offenses, an unlawful killing, is the same. The crime of involuntary manslaughter as defined by the' court is necessarily included in the offense of second degree murder charged in the indictment. The1 statutes defining the different degrees of homicide do not use the term "involuntary manslaughter". Jennings contends that because of such omission the common law must be looked to, and that at common law involuntary manslaughter was a misdemeanor. Since a sentence of imprisonment for a misdemeanor may not exceed one year , Jennings argues that his sentence of imprisonment for six years was unlawful. In its instructions to the jury, the court defined involuntary manslaughter as an unlawful killing, not accompanied by the elements of premeditation, malice, and purpose such as would make the killing first or second degree murder. AS 11.15.-040 defines manslaughter as an unlawful killing that does not amount to first or second degree murder. The crime of which Jennings was convicted, although called involuntary manslaughter in the instructions and in the verdict, was the same as the crime of manslaughter as defined by statute. Therefore, Jennings was convicted of a statutory offense, and recourse to the common law on the theory that involuntary manslaughter was a common law misdemeanor was not required or justified. Jennings' final point on this appeal is that the court erred in not providing for the jury a form of verdict reading: "Not guilty by reason of excusable homicide." . Sucli a form of verdict was unnecessary. The jury was instructed that if they found that the killing of Anderson was excusable or accidental, that Jennings must be found not guilty of second degree murder, and not guilty of both voluntary and involuntary manslaughter. Forms of verdict for such findings were furnished. These forms, when considered in the light of the court's instructions, were all that Jennings was entitled to have given to the jury to reflect its verdict. The judgment is affirmed. . Criminal Rule 26(b) (2) provides in part: A husband shall not be examined for or against his wife, without her consent, nor a wife for or against 'her husband, without his consent . Jennings, consented to his wife testifying as a witness for the State. . Opinion No. 265, 397 P.2d 616, 618 (Alaska 1964). . 369 P.2d 879, 882 (1962). . Supra note 2. . Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232, cert, denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). .State v. Bean, 77 Vt. 384, 60 A. 807, 814 (1905). See 1 Wharton, Criminal Evidence § 12, at 36 (12th ed. 1955). . Barbeau v. United States, 193 E.2d 945, 947, 13 Alaska 551 (9th Cir. 1951), cert. denied, 343 U.S. 968, 72 S.Ct. 1064, 96 L.Ed. 1364 (1952). . Mahle v. State, 392 P.2d 19, 20 (Alaska 1964); House v. State, 186 Ind. 593, 117 N.E. 647, 648 (1917); Giles v. United States, 144 E.2d 860, 861, 10 Alaska 455 (9th Cir. 1944); James v. United States, 238 F.2d 681, 683, 16 Alaska 513 (9th Cir. 1956); Larson v. United States, 296 E.2d 80, 81 (10th Cir. 1961). . United States v. Barbeau, 92 P.Supp. 196, 200, 12 Alaska 725, 733 (D.Alaska 1950), aff'd., 193 E.2d 945, 947, 13 Alaska 551 (9th Cir. 1951), cert, denied, 343 U.S. 968, 72 S.Ct. 1064, 96 L.Ed. 1364 (1952). . AS 11.75.030 provides: Crimes are divided into felonies and misdemeanors. A felony is a crime which is or may be punishable by imprisonment for a period exceeding one year. Every other crime is a misdemeanor. . Verdicts IV and V read as follows: VERDICT NO. IV. We, the Jury duly impaneled and sworn to try the above-entitled cause, do find the defendant, Marvin Thomas Jennings, not guilty of second degree murder, not guilty of voluntary manslaughter, not guilty of involuntai-y manslaughter, but guilty of assault and battery. VERDICT NO, V. We, . the Jury duly impaneled and ' sworn to try the above-entitled cause, do find the defendant, Marvin Thomas Jennings, not guilty of second degree murder, not guilty of voluntary manslaughter, not guilty of involuntary manslaughter, and not guilty of assault and battery.

10343892

Lester W. BOOTH, Jr., Appellant, v. STATE of Alaska, Appellee

Booth v. State

1995-08-18

No. A-5126

1079

1090

903 P.2d 1079

903

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Lester W. BOOTH, Jr., Appellant, v. STATE of Alaska, Appellee.

Lester W. BOOTH, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-5126. Court of Appeals of Alaska. Aug. 18, 1995. Order Denying Rehearing Sept. 1, 1995. Hearing Denied Dec. 28, 1995. Barbara E. Kissner, Assistant Public Defender, Ketchikan, and John B. Salemi, Public Defender, Anchorage, for appellant. Stephen R. West, Assistant District Attorney, Ketchikan, and Bruce M. Bothelo, Attorney General, Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

5435

34612

MANNHEIMER, Judge. On January 22, 1993, on the Annette Islands Reserve, Lester W. Booth, Jr., kicked Debbie Booth in the stomach and the face. He was subsequently charged with the offense of fourth-degree assault under the laws of the State of Alaska, AS 11.41.230(a). Simultaneously, Booth was charged with the offenses of assault, battery, and threat or intimidation under the laws of the Metlakatla Indian Community, Ordinance No. 86-735a, § 5, 7, & 19. On January 25th, Booth appeared in the Metlakatla court and pleaded not guilty to the three Metlakatla charges. Later that same day, Booth appeared in the Alaska district court in Ketchikan and pleaded no contest to the state charge. However, when District Court Judge George L. Gucker learned that there was also a Metlakatla prosecution pending against Booth, he deferred Booth's sentencing and directed the prosecutor to find out about the Metlakatla charges. While the state prosecution was on hold, Booth pleaded guilty to the Metlakatla criminal charges. The Metlakatla court fined him a total of $710 with $310 suspended ($400 to pay). On April 28,1993, Booth again appeared in the Ketchikan district court, this time represented by an attorney. Booth asked the district court to dismiss the fourth-degree assault charge. He argued that the State of Alaska did not have jurisdiction over criminal offenses occurring on the Annette Islands Reserve. In the alternative, Booth argued that his conviction in the Metlakatla court barred any continued prosecution under state law for the same conduct. A few weeks later, Booth asked the district court to allow him to withdraw his no contest plea to the state charge. Judge Gucker granted Booth's request to withdraw his plea, and he scheduled a hearing on Booth's motion to dismiss. Following this hearing, Judge Gucker denied Booth's motion. Booth then pleaded no contest to the charge of fourth-degree assault, reserving the right to appeal his conviction on the ground that the State was legally barred from prosecuting him — either because the State lacked jurisdiction over the offense, or because the Met-lakatla court had already entered judgement against Booth. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). As explained in more detail below, we hold that the State of Alaska had jurisdiction to prosecute Booth for his assault on his wife, but we also hold that AS 12.20.010 barred the State from prosecuting Booth after judgement was entered against him by the Metla-katla court. Does the State of Alaska Have Jurisdiction Over Crimes Committed in the Annette Islands Reserve? In 1887, following a dispute with the government of British Columbia, about eight hundred Indians migrated to Alaska, where they established the Metlakatla Community. In 1891, Congress set aside the Annette Islands as a reserve for the Metlakatlans. See Metlakatla Indian Community, Annette Islands Reserve v. Egan, 369 U.S. 45, 48-54, 82 S.Ct. 552, 556-59, 7 L.Ed.2d 562, 566-69 (1962); Atkinson v. Haldane, 569 P.2d 151, 153-56 (Alaska 1977). In 1915, the Secretary of the Interior authorized the Metlakatla Community to pass local ordinances to govern itself; however, the Secretary "subjected self-government of Metlakatla not only to federal oversight but to territorial laws as well". Metlakatla Indian Community, 369 U.S. at 54, 82 S.Ct. at 558-59, 7 L.Ed.2d at 569. In 1944, the Secretary approved a constitution and by-laws drafted by the Metla-katla Indian Community, establishing a local government that includes a judiciary. See Metlakatla Indian Community Ordinance No. 653, establishing a magistrate's court and setting procedures for the trial of offenses. The question presented in Booth's ease is whether the State of Alaska exercises concurrent jurisdiction over crimes committed within the Annette Islands Reserve. This is a question of federal law, and the answer is given by 18 U.S.C. § 1162(a). The pertinent portion of this federal statute reads: Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory: State or Territory of Indian Country Affected Alaska .All Indian country within the State, except that on Annette Islands, the Metlakatla Indian Community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended. The crucial language of this statute, for purposes of Booth's appeal, is the exception clause pertaining to the Metlakatla Community. The federal statute states that the Metlakatla Community "may exercise jurisdiction over offenses committed by Indians in the same manner [as] such jurisdiction [is] exercised by Indian tribes in Indian country over which State jurisdiction has not been extended". Booth contends that this language means that the Metlakatla Community exercises sole jurisdiction over crimes committed by Indians within the Annette Islands Reserve. However, both the language of the statute itself and its legislative history support the conclusion that the Metlakatla Community and the State of Alaska exercise concurrent jurisdiction over crimes committed by Indians within the Annette Islands Reserve. The federal statute begins by giving the State of Alaska jurisdiction over offenses committed in "all Indian country within the State", and then provides the exception for the Metlakatla Community. The language of the exception does not explicitly give the Metlakatla Community exclusive jurisdiction over such offenses; rather, the statutory language only empowers the Metlakatlans to exercise jurisdiction. While the statute authorizes the Metlakatlans to exercise criminal jurisdiction "in the same manner" as other Indian tribes who have exclusive jurisdiction within their reservations, this is not necessarily the same as a grant of exclusive jurisdiction. It can also mean that the Metlakat-lans have undiminished concurrent jurisdiction over offenses committed by Indians within the Reserve. Compare Organized Village of Kake v. Egan, 369 U.S. 60, 67-71, 82 S.Ct. 562, 566-69, 7 L.Ed.2d 573, 579-81 (1962), in which the United States Supreme Court construed language in the Alaska Statehood Act directing that the federal government should retain "absolute jurisdiction and control" over federally owned lands within Alaska. The Supreme Court interpreted this provision of the Statehood Act to mean that the federal government's control over federal lands within Alaska would remain "undiminished" (but concurrent) rather than "exclusive". We note that the wording of the Metlakat-la exception does not follow the pattern Congress used when it created enclaves of exclusive Indian jurisdiction in other states. See, for example, the listings in 18 U.S.C. § 1162(a) for Minnesota ("All Indian country within the State, except the Red Lake Reservation") and for Oregon ("All Indian country within the State, except the Warm Springs Reservation"). This difference in the wording of the Metlakatla exception suggests that Congress intended for the Metlakatla Com munity's jurisdiction to be concurrent with the State of Alaska's jurisdiction rather than exclusive. Congress did not enact the disputed language involving the Metlakatla Community until 1970; the prior version of the Alaska paragraph of the statute simply gave the Territory of Alaska criminal jurisdiction over "[a]ll Indian country within the Territory". Public Law No. 85-615, § 1, 72 Stat. 545 (1958). One Alaska commentator describes the rationale of the 1970 amendment as follows: The Metlakatla residents belatedly learned that [under the 1958 version of the statute] they no longer retained previously exercised criminal jurisdiction over minor offenses. Because no state troopers or magistrates worked in Metlakatla, inadequate law enforcement on the reservation resulted under P[ublie] L[aw] 280. Consequently, in 1970, Congress passed an exception to PL 280's criminal jurisdictional grant that conferred concurrent criminal jurisdiction on the Metlakatla Community. Susanne Di Pietro, Tribal Court Jurisdiction and Public Law 280: What Role for Tribal Courts in Alaska?, 10 Alaska Law Rev. 335, 354 n. 112 (1993) (citations omitted). This construction of the statute is amply supported by the statute's legislative history. The House of Representatives Report, the Interior Department Report, the Justice Department Report, and statements from Representatives Donohue and Pollock all repeatedly and specifically state that, under the 1970 amendment, the Metlakatla Community would be granted "concurrent" criminal jurisdiction with the State of Alaska. In particular, the House Report states: The language of the bill makes a specific reference to the exercise of similar jurisdiction under the law now applicable in the case of other Indian tribes. It would be provided that the [Metlakatla] community may exercise jurisdiction over offenses committed by Indians "in the same manner" in which that jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended. As is obvious from the departmental report and this report, State jurisdiction has been extended over this community, and under this amendment the State will continue to have concurrent jurisdiction. The committee interprets the reference to the exercise of jurisdiction "in the same manner" as requiring that the jurisdiction be exercised in accordance with the laws applicable to the other tribes. 1970 U.S.Code Congress'l & Admin.News 4783, 4785-86. In addition, the Senate Report supports the conclusion that the Metlakatla Community's jurisdiction was intended to be concurrent. The original Senate bill had explicitly provided that the State of Alaska would have criminal jurisdiction over "[a]ll Indian country within the State, except that on the Annette Islands, the Metlakatle [sic] Indian community may exercise concurrently such jurisdiction as was vested in it immediately prior to the date of enactment of the Act of August 8, 1958 (72 Stat. 545)." The Senate ultimately replaced that language with the language that now exists in 18 U.S.C. § 1162(a). However, the Senate Report explained that this change was not intended to alter the substance of the earlier version. Instead, the changed language was a technical amendment which makes the language of the bill more in harmony with other sections of title 18 regarding Indian affairs. The amendment has the same purpose as the original language of S. 902[.] 116 Congressional Record 32585, 32586 (Sept. 18, 1970). Based both upon the wording of 18 U.S.C. § 1162(a) and upon the legislative history of that statute, we conclude that both the State of Alaska and the Metlakatla Indian Community have concurrent jurisdiction over offenses committed by Indians within the Annette Islands Reserve. The State of Alaska therefore had the legal right to bring charges against Booth, and the district court had the legal authority to adjudicate those charges, even though Booth's crime also falls within the concurrent jurisdiction of the Met-lakatla Indian Community. Does the Federal Double Jeopardy Clause Prohibit the State of Alaska from Prosecuting Booth? Booth argues that the double jeopardy-clause of the Fifth Amendment to the United States Constitution prohibits the State from prosecuting him after he was convicted in the Metlakatla Community court. We conclude, however, that the federal double jeopardy clause does not prohibit the State of Alaska from separately prosecuting and punishing Booth. Federal double jeopardy law does not prohibit separate sovereigns from separately prosecuting and punishing the same criminal act. Thus, if a person commits a crime that is prohibited by both federal and state law, both the federal government and the state government can separately prosecute the person for that crime. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The same is true when a person's crime violates both federal law and the law of a sovereign Indian tribe: both the federal government and the tribe may separately prosecute the person for the crime. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). Compare Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), holding that municipalities are not separate sovereigns for double jeopardy purposes because their power to prosecute criminal offenses "springs from the same organic law" as the state's power; therefore, the double jeopardy clause is violated when a defendant is successively prosecuted first by a municipality and then by the state. Regardless of whether the Metla-katla Indian Community is a "tribe" in the usual sense, it is clear that the Metlakatlans' limited right of self-governance does not stem from any enactment of the State of Alaska. For this reason, we conclude that the Metlakatla Community is a "separate sovereign" for federal double jeopardy purposes. Applying the rule of United States v. Wheeler, we therefore conclude that the federal double jeopardy clause does not bar the State of Alaska from separately prosecuting Booth for assault. Does AS 12.20.010 Bar the State of Alaska from Prosecuting Booth? (a) Is the Metlakatla Community a "Territory" for Purposes of AS 12.20.010? Having decided that the State of Alaska has criminal jurisdiction over Booth, and that the State's prosecution of Booth is not barred by the double jeopardy clause, we must next address the issue of whether the State's prosecution of Booth is barred by AS 12.20.010. This statute provides: When an act charged as a crime is within the jurisdiction of the United States, another state, or a territory, as well as [within the jurisdiction] of this state, a conviction or acquittal in the former is a bar to the prosecution for it in this state. AS 12.20.010 is designed to complement the double jeopardy clause by protecting criminal defendants against successive prosecutions by different governments. About half of the states have decided that the "separate sovereigns" doctrine can lead to overly harsh results. Accordingly, these states have enacted statutes that either limit or extinguish the power of their own state to prosecute a defendant after another sovereign has already done so. See W. LaFave & J. Israel, Criminal Procedure (1984), § 24.5(b)-(c), Vol. 3, pp. 100-03. Many of these state statutes are catalogued in the American Law Institute's Model Penal Code and Commentaries (1985), § 1.10, Commentary, nn. 15,17,18, & 21. However, Alaska's statute is not based on the Model Penal Code or any of its tentative drafts; rather, Alaska's statute dates back to territorial days. Booth argues that, because he was convicted of crimes under Metlakatlan law based on his assault upon Debbie Booth, AS 12.20.010 bars the State from subsequently prosecuting him for any crime arising from the same act of assault. The initial hurdle for Booth's argument is that AS 12.20.010 applies only to acts "within the jurisdiction of the United States, another state, or a territory", and to convictions or acquittals under the laws of one of these governmental entities. Because the Metlakatla Indian Community is neither a state nor a federal territory, AS 12.20.010 seemingly does not encompass convictions and acquittals under Metlakatla law. However, while the Metlakatla Community is not a state or a federal territory, its right of limited self-governance is not derived from the organic law of the State of Alaska. The Metlakatla Community's unusual status requires us to closely examine the legislative intent underlying AS 12.20.010. When a court interprets a statute, "the goal . is to give effect to the legislature's intent". Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905 (Alaska 1987). Because the key question is, "What did the legislature intend this statute to accomplish?", it is foreseeable that different statutes, dealing with different problems, will require different definitions of a state government's relationship to Indian tribes or communities. Compare Tracy v. Superior Court, 168 Ariz. 23, 810 P.2d 1030, 1035-1046 (1991) (holding that the Navajo Nation is a "territory" for purposes of the Uniform Act to Secure the Attendance of Witnesses) with Queets Band of Indians v. State, 102 Wash.2d 1, 682 P.2d 909 (1984) (holding that the Quinault Indian and the Muckleshoot Indian reservations are not "territories" for purposes of Washington's commercial vehicle registration reciprocity law). The Alaska Legislature intended AS 12.20.010 to insulate defendants from dual prosecution by separate sovereigns. As we explained above, the Metlakatla Community is a separate sovereign for double jeopardy purposes. It therefore seems that the policy of AS 12.20.010 would be best realized by treating the Metlakatla Community as the equivalent of another state or territory. Employing this rationale, at least one state court has held that an Indian reservation is a "territory" for purposes of applying that state's counterpart to AS 12.20.010. People v. Morgan, 785 P.2d 1294 (Colo.1990). The court in Morgan concluded: Exclusion of tribal court prosecutions from [Colorado's successive prosecutions statute] would perpetuate the application of the dual sovereignty doctrine in some instances, contravening an apparent purpose of the legislature in enacting the statute. The better reading of [our statute] uniformly abolishes the dual sovereignty doctrine, prohibiting prosecution under Colorado law when the defendant has been subjected to a prior prosecution by any separate sovereign — federal, state, or tribal. Morgan, 785 P.2d at 1298 (emphasis in the original). We find the reasoning of the Colorado court persuasive. We are convinced that the legislative intent behind AS 12.20.010 calls for inclusion of the Metlakatla Indian Community as a "territory" under the statute. The intention of the statute is to grant defendants greater protection against successive prosecutions than is afforded by the double jeopardy clause. Interpreting the statutory language to include the Metlakatla Community best realizes this intention. (b) Was Booth Subjected to the Type of Prosecution in Metlakatla that Creates a Bar to Further Prosecution by the State? The State argues that, even if Metlakatla is a territory for purposes of AS 12.20.010, Booth's prosecution in Metlakatla does not create a bar to farther prosecution by the State. The State's argument has three parts: First, the State points out that the double jeopardy clause does not completely bar successive prosecutions, but only successive prosecutions for the same "offense". Under established double jeopardy law, a defendant's prior prosecution for a traffic infraction or other minor, non-criminal violation will not bar the State from later prosecuting the defendant for a criminal offense based on the same conduct. Carlson v. State, 676 P.2d 603 (Alaska App.1984); State v. Currie, 197 A.2d 678, 684-85 (N.J.1964). Second, the State argues that, even though AS 12.20.010 was enacted to restrict the scope of the "separate sovereigns" doctrine, there is no indication that the Alaska Legislature intended AS 12.20.010 to augment any other aspect of the double jeopardy clause. Thus, if successive prosecutions by the same sovereign would be allowed under the double jeopardy clause, successive prosecutions by separate sovereigns should also be allowed under AS 12.20.010. Third and finally, the State argues that, for double jeopardy purposes, Booth was not subjected to a "criminal prosecution" in Met-lakatla. The State asserts that Booth faced only minor penalties for his violations of Met-lakatla law. In particular, the State points out that Booth faced no possibility of imprisonment under Metlakatla law. If Booth has never faced criminal penalties, so that the double jeopardy clause would not bar Booth's later prosecution by the same sovereign, then (the State reasons) AS 12.20.010 should not bar a later prosecution by a different sovereign. The State's argument requires us to scrutinize the penalties provided by Metla-katla law for Booth's offenses. Booth was accused of violating three sections of the Metlakatla Community's code of criminal offenses (contained in Metlakatla Ordinance No. 86-735a): "assault", "battery", and "threat or intimidation". Under the Metla-katla criminal code, a violation of any of these three sections is an "offense". However, imprisonment is not an authorized punishment for these offenses. For the offense of battery, Metlakatla law authorizes a fine of no more than $360 and not more than six months of community labor. For the offenses of assault and threat, Metlakatla law authorizes a fine of no more than $250 and not more than three months of community labor. Under the Metlakatla criminal code, "community labor" can take the form of any work which, in the magistrate's judgement, results in the public good. See Metlakatla Ordinance No. 86-735a, § 5, 7, 19, & 11 A; Metlakatla Ordinance No. 653, § 11; and Metlakatla Constitution, Article V, § 2. We assume that the State is correct in arguing that fines of no more than $360 are not the sort of severe sanction that denotes criminality. However, we conclude that a sentence of "community labor" is a criminal penalty. Alaska law has its own counterpart to Metlakatla's "community labor". Under AS 12.55.015(a)(6), a judge may require a defendant "to carry out a continuous or periodic program of community work under AS 12.55.055" — but only after the defendant has been convicted of an offense. More to the point, the Thirteenth Amendment to the United States Constitution prohibits "involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted". We therefore hold that forced labor is a criminal penalty under Alaska law; thus, an offense punishable by forced labor is a criminal offense for purposes of AS 12.20.010. We deliberately use the term "punishable" rather than "punished". As noted above, Booth's total penalty for the three offenses was a composite fine of $710 with $310 suspended ($400 to pay). He was not sentenced to any labor. However, the question of whether Booth was subjected to criminal prosecution (for double jeopardy purposes) hinges, not on the sentence Booth eventually received, but on Booth's potential risk of being sentenced to forced labor. Under Alaska constitutional law, it is the potential penalty for a crime that determines whether the accused is entitled to a jury trial, Baker v. Fairbanks, 471 P.2d 386, 402 (Alaska 1970), and whether the accused is entitled to the assistance of a court-appointed attorney, Alexander v. Anchorage, 490 P.2d 910, 915 (Alaska 1971). These two decisions do not directly address the issue of what is a criminal offense for double jeopardy purposes. However, it is difficult to conceive that the Alaska Supreme Court would ever hold that the potential penalty for a crime was severe enough to require court-appointed counsel and trial by jury but at the same time too minor for the crime to constitute an "offense" for double jeopardy purposes. The tacit rationale of Baker and Alexander is that the defendant's entitlement (or lack of entitlement) to basic procedural rights must be determined before the trial begins, not after the sentence is imposed. This same rationale applies just as forcefully in the double jeopardy arena. The double jeopardy clause's prohibition of successive prosecutions is premised on the understanding that it is fundamentally unfair to repeatedly subject a defendant to the "heavy pressures and burdens — psychological, physical, and financial — [imposed] on a person charged [in criminal proceedings]. The purpose of the Double Jeopardy Clause is to require that he be subject to [this] experience only once 'for the same offence'." Breed v. Jones, 421 U.S. 519, 530, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346, 355 (1975). Courts have recognized that the "pressures and burdens" of a criminal prosecution can be gauged, in large measure, by the extent of the defendant's potential liability if convicted. A defendant must make his or her "psychological, physical, and financial" commitments to the litigation at the outset, not at the end. Thus, it is the defendant's potential liability that drives the defendant's decision-making, particularly concerning the extent of the defendant's investment of energy and resources. And it is the defendant's potential liability that colors the "psychological [and] physical" experience of litigation. This same reasoning underlies decisions such as Carlson v. State, 676 P.2d 603 (Alaska App.1984), holding that a prosecution for a traffic infraction does not constitute a prior "criminal prosecution" for double jeopardy purposes. Again, the key is the defendant's potential liability if found guilty. Because the potential penalty for a traffic violation is small, and because the stigma of being found guilty of a traffic violation is slight, a defendant facing trial does not suffer the pressures and expense of a normal criminal trial. This reasoning was elucidated by the New Jersey Supreme Court in State v. Currie, 41 N.J. 531, 197 A.2d 678, 685 (1964): Motor Vehicle Act violations are generally tried quickly and informally before local police magistrates who are in some instances not even attorneys at law. The evidential presentation may be very limited and the legal representation may likewise be very limited or entirely absent. The maximum fines and terms of imprisonment are minor in comparison to those fixed for violation of our Crimes Act and indeed they are even much lower than those which may be imposed for violation of our Disorderly Persons Act. The defendant, if found guilty, may for the most part anticipate the imposition of a modest fine.... The elements of oppression or harassment historically aimed at by the constitutional and common law prohibition are not significantly involved; and permitting the second prosecution would not violate the reasonable expectations attendant upon the first proceeding[,] while barring it would operate with gross unfairness to the State. In Carlson, this court agreed with the New Jersey court that a defendant charged with a traffic violation who faces the possibility of a small fine at the end of a short, informal proceeding has not been subjected to a criminal prosecution for double jeopardy purposes. But the situation is different for a defendant facing months of forced labor as the potential penalty for conduct that any reasonable person would label "criminal". Such a defendant experiences a "criminal prosecution". If Booth had earlier been prosecuted by the State of Alaska for his assault, and if Booth had faced a potential penalty of forced labor, this would have been a "criminal prosecution" under Alaska law. Having been in jeopardy once, Booth could not again be prosecuted by the State for the same offense. The purpose behind AS 12.20.010 is to extend the protection against successive prosecutions to situations in which separate sovereigns institute the prosecutions. We therefore hold that when Booth was prosecuted and convicted by the Metlakatla Indian Community and faced a potential penalty of forced labor, this constituted a criminal prosecution for purposes of AS 12.20.010. Because Booth has already been convicted once for his assault, AS 12.20.010 prohibits the State of Alaska from now prosecuting Booth again for that same assault. Conclusion For the reasons explained in this opinion, we construe AS 12.20.010 to prohibit the State of Alaska from maintaining this prosecution against Booth. We therefore REVERSE Booth's conviction and we direct the district court to dismiss the fourth-degree assault charge. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. Order The State of Alaska seeks rehearing of our decision in this case. The State asserts that this court failed to consider the fact that the two prosecutions against Booth occurred simultaneously, and the State argues that AS 12.20.010, the statute barring successive prosecutions, does not apply to a situation in which two government entities prosecute the defendant at the same time. Upon consideration of this petition for rehearing. It is ORDERED that the petition for rehearing is DENIED. The issue of simultaneous prosecutions was not raised in the State's brief. It is elementary law that parties can not require this court to address claims or arguments that were not briefed. A party's failure to brief an issue constitutes an abandonment of that issue. Lewis v. State, 469 P.2d 689, 691 n. 2 (Alaska 1970). Appellate Rule 506(a) allows a party to seek rehearing when this court "has overlooked . or failed to consider a principle directly controlling" the decision on appeal, or when this court "has overlooked . [a] material . proposition of law". However, Rule 506(a) was not intended to allow parties to raise new arguments after they have had a chance to analyze and appellate court's decision. Rule 506(a) implicitly limits rehearing to legal principles or propositions that were raised by the parties in the normal course of the appeal. Entered at the direction of the court. . The background and governance of the Metla-katla Community are described in United States v. Booth, 161 F.Supp. 269, 270 (D.Alaska 1958). . Booth's brief to this court also mentions the double jeopardy clause of the Alaska Constitution (Art. I, Sec. 9). However, this state constitutional provision is mentioned only in passing; Booth does not argue that Alaska's double jeopardy clause confers any greater rights on him than does the corresponding federal double jeopardy clause. For this reason, we do not address the issue of whether Alaska's double jeopardy clause should be interpreted more broadly than its federal counterpart. . A similar provision, dealing only with drug offenses, is found in AS 11.71.310, which Alaska took from the Uniform Controlled Substances Act, § 405: "If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state." . Section 2118 of the 1913 Compiled Laws of Alaska read: That when an act declared to be a crime is within the jurisdiction of any State, county, or Territory, as well as within [this] District, a conviction or acquittal therefor in the former is a bar to a prosecution therefor in [this] District. With a small editorial change (the word "District'' changed to "Territory''), this statute was recodified as § 66-3-4 of the 1949 Compiled Laws of Alaska. . The Fifth Amendment to the United States Constitution provides, "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb". . AS 12.55.055 provides, in pertinent part: Community Work. (a) The court may order a defendant convicted of an offense to perform community work as a condition of probation, a suspended sentence, or suspended imposition of sentence, or in addition to any fine or restitution ordered. If the defendant is sentenced to imprisonment, the court may recommend to the Department of Corrections that the defendant perform community work. (b) Community work includes work on projects designed to reduce or eliminate environmental damage, protect the public health, or improve public lands, forests, parks, roads, highways, facilities, or education. Community work may not confer a private benefit on a person except as may be incidental to the public benefit. (c) The court may offer a defendant convicted of an offense the option of performing community work in lieu of a fine or a portion of a fine if the court finds the defendant is unable to pay the fine. The value of community work in lieu of a fine is $3.00 per hour. (d) The court may offer a defendant convicted of an offense the option of performing community work in lieu of a sentence of imprisonment. Substitution of community work shall be at a rate of eight hours for each day of imprisonment. A court may not offer substitution of community work for any mandatory minimum period of imprisonment or for any period of a presumptive term of imprisonment. . Compare Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), in which the Supreme Court held that the Sixth Amendment does not require the states to provide counsel to every defendant tried for a minor offense that carries a potential sentence of incarceration; however, if a defendant is not provided with counsel, the state can not sentence the defendant to incarceration. . We recognize that Metlakatla criminal procedure is significantly more informal than Alaska criminal procedure. Under Metlakatla Ordinance No. 653, offenses are tried before a magistrate sitting without a jury. The government's case is presented by the Chief Constable. Though a defendant has the right to hire an attorney, a defendant has no right to counsel at public expense. See Metlakatla Ordinance No. 653, § 4(a) & 13. That is, Metlakatla's criminal procedure is quite similar to the procedure employed by Alaska courts when adjudicating traffic infractions and other minor "violations". See AS 11.81.900(b)(57); AS 28.40.050; State v. Clayton, 584 P.2d 1111 (Alaska 1978). Nevertheless, for double jeopardy purposes, it is the potential penalty that primarily determines whether the proceeding is "criminal" or "non-criminal".

10437298

Carl WHITSON, Individually and as Officer, Agent, or Employee of the Libertarian Party, and the Libertarian Party, Appellants, v. ANCHORAGE, a Municipal Corporation, Appellee

Whitson v. Anchorage

1981-08-07

No. 5469

232

234

632 P.2d 232

632

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:18:13.908471+00:00

CAP

Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

Carl WHITSON, Individually and as Officer, Agent, or Employee of the Libertarian Party, and the Libertarian Party, Appellants, v. ANCHORAGE, a Municipal Corporation, Appellee.

Carl WHITSON, Individually and as Officer, Agent, or Employee of the Libertarian Party, and the Libertarian Party, Appellants, v. ANCHORAGE, a Municipal Corporation, Appellee. No. 5469. Supreme Court of Alaska. Aug. 7, 1981. See also, Alaska, 608 P.2d 759. George Trefry, Holland & Trefry, Anchorage, for appellants. Donald L. Starks, Asst. Municipal Atty., and Theodore D. Berns, Municipal Atty., Anchorage, for appellee. Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

907

5740

OPINION PER CURIAM. In 1977, Carl Whitson presented a petition to the Anchorage municipal clerk to have an initiative placed on the next election ballot. The initiative, if it had passed, would have amended the Anchorage Municipal Charter by adding the following article: Section 14.10(e). Any new tax and any increase in any tax rate must be ratified by a majority of those voting on the question at a regular or special election. In January, 1978, the municipality filed a complaint seeking a declaratory judgment that the proposed initiative was unlawful, unconstitutional and void. The superior court granted summary judgment to the municipality and ordered the initiative removed from the ballot. Whitson appealed the decision to this court and we affirmed it on the basis that the initiative conflicted with a state statute. Whitson v. Anchorage, 608 P.2d 759, 761 (Alaska 1980). Pursuant to former Appellate Rule 29, we initially awarded the municipality $589.53 for its costs and attorney's fees incurred in the appeal. Upon petition for rehearing by Whitson, we vacated that award and ordered the parties to bear their own costs and fees. This was because we found persuasive Whitson's argument that the appeal involved issues of public interest. In accordance with Gilbert v. State, 526 P.2d 1131 (Alaska 1974), and its progeny, we decided that public policy precluded an award of fees and costs against Whitson, "a losing party who [had] in good faith raised a question of genuine public interest" before this court. Gilbert v. State, 526 P.2d at 1136. This reasoning, however, was not reflected in our mandate. Subsequently, the municipality requested the superior court to award it $4,482.00 for attorney's fees incurred in the superior court action because after our decision in Whitson v. Anchorage it was the prevailing party in that action. The superior court awarded the requested sum. After his motion for reconsideration was denied, Whit-son brought this appeal. Whitson argues that the policy of not awarding attorney's fees against a losing private party in public interest litigation precludes the award of attorney's fees made by the superior court in this case. We agree. There is little point, however, in discussing this issue in the context of previously announced criteria for the award of attorney's fees in public interest litigation. Although we have held that unsuccessful private parties are shielded from the award of attorney's fees to governmental defendants in public interest litigation (Douglas v. Glacier State Telephone Co., 615 P.2d 580, 594 (Alaska 1980); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974)), we have never decided a case in which the private party is the defendant and the governmental agency is the plaintiff. Nonetheless, we find the underlying reasons for the policy to be equally applicable in this situation. Attorney's fees are not awarded against a losing private party in public interest litigation because this could deter citizens from litigating issues of public concern. Douglas v. Glacier State Telephone Co., 615 P.2d at 594. This rationale applies with equal strength to plaintiffs who are raising public interest claims and defendants who are opposing a challenge by raising a public interest defense. In either case, litigants should not be deterred by the prospect of the imposition of court-awarded attorney's fees to the opposing party. Furthermore, the procedural history of a case that results in a citizen defending, rather than initiating, a public interest lawsuit does not alter his status as a "private attorney general." If the municipality had refused to place the initiative on the ballot, Whitson could have instituted an action against it, and he would then have been a traditional private party plaintiff. Whitson should not be required to bear the costs of public interest litigation merely because the municipality decided to bring an action for declaratory judgment against him, or — to phrase it differently— merely because the municipality "beat him to the court steps." Whitson's attempt to place an initiative on the ballot that would have given voters more direct control over taxes was not frivolous and was not primarily intended to further his own interests. Although the proposed amendment was ultimately found to be impermissible because it conflicted with state law, Whitson's defense of the municipality's action helped define the boundaries of what can be accomplished by the initiative process. This benefits all citizens of the state who are interested in exercising their constitutional right to enact legislation through the initiative process. Alaska Const, art. XI, § 1. We conclude that the superior court's award of attorney's fees to the municipality was manifestly unreasonable. The order is REVERSED. . Former Appellate Rule 29(d) provided in pertinent part that "[w]here costs are allowed in the appellate court, attorney's fees may also be allowed in an amount to be determined by the court." This provision is now set forth in Appellate Rule 508(e). . E.g., Moses v. McGarvey, 614 P.2d 1363, 1369 (Alaska 1980); Thomas v. Bailey, 611 P.2d 536, 539 n.7 (Alaska 1980); Anchorage v. McCabe, 568 P.2d 986, 991 (Alaska 1978).

10343743

Erich von STAUFFENBERG, Robert Andrews, Judy Ereckson, Timothy Shields and Richard Folta, Appellants, v. The COMMITTEE FOR an HONEST AND ETHICAL SCHOOL BOARD, Appellee

von Stauffenberg v. Committee for an Honest & Ethical School Board

1995-10-06

No. S-5795

1055

1061

903 P.2d 1055

903

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Erich von STAUFFENBERG, Robert Andrews, Judy Ereckson, Timothy Shields and Richard Folta, Appellants, v. The COMMITTEE FOR an HONEST AND ETHICAL SCHOOL BOARD, Appellee.

Erich von STAUFFENBERG, Robert Andrews, Judy Ereckson, Timothy Shields and Richard Folta, Appellants, v. The COMMITTEE FOR an HONEST AND ETHICAL SCHOOL BOARD, Appellee. No. S-5795. Supreme Court of Alaska. Oct. 6, 1995. John M. Sedor, Bankston & McCollum, Anchorage, for Appellants. Richard D. Monkman, Dillon & Findley, Juneau, for Appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3869

23844

OPINION RABINOWITZ, Justice. I. INTRODUCTION Erich von Stauffenberg, Robert Andrews, Judy Ereckson, Timothy Shields and Richard Folta appeal the superior court's grant of partial summary judgment in favor of the Committee for an Honest and Ethical School Board. In this appeal we must determine whether allegations contained in a recall petition state legally sufficient grounds for the recall of elected municipal officials under Alaska's statutes. II. FACTS AND PROCEEDINGS During the 1992-93 school year, the Haines Borough (Borough) was consumed with controversy surrounding elementary school principal Mary Asper (Asper). A number of parents felt that Asper should not be retained because she lacked the ability to perform her job. On April 6, 1993, the Haines Borough School Board (Board) held a regularly scheduled meeting. The Board was to consider whether to retain Asper for the 1993-94 school year. A number of concerned parents and other members of the community attended the meeting to express their views regarding the retention of Asper. Asper requested that Board discussion regarding her retention take place in executive session. The minutes reflect that, in response to As-per's request, the Board went into executive session after reciting an exception to the Open Meetings Act. The minutes state as follows: M7S Young/Staska to move into executive session to discuss items which would tend to prejudice the reputation and character of a person, and that person has been given notice and the opportunity to request a public discussion. Upon reconvening in public session, the Board refused to hear any public testimony relating to the retention of Asper. Superintendent Billingsley then recommended to the Board that it not retain Asper. School Board member Shirley Willard then moved to nonretain Asper. However, the motion failed for lack of a second and Asper was retained for the next school year. In response to the Board's rejection of her recommendation, Superintendent Billingsley submitted her resignation, which she subsequently withdrew. These events received much attention and caused considerable debate and discord in the Haines Borough. Soon thereafter, a group of "concerned parents and voters" formed the Committee for an Honest and Ethical School Board (Committee). Members of the Committee submitted to the Haines Borough Clerk (Clerk) an application for a recall petition to recall five of the seven Board members. The five Board members whose recall was sought were Robert Andrews, Arlana Young, Nancy Nash, Ray Menaker and Ray Staska. The application stated the grounds for recall as follows: [MJisconduct in office and failure to perform prescribed duties by these members, specifically: (1) Misconduct on April 6, 1993 when the members entered into an improper, closed door executive session, in violation of Alaska Law, and discussed the superintendent's decision on the retention of Mary Asper; and (2) Misconduct on April 6, 1993 when the members refused to support the superintendent's decision on the retention of Mary Asper, which had the effect of forcing the superintendent to resign and a course of action that was not in the best interests of the students of the Haines Borough School District; and (3) Failure to perform prescribed duties by failing to provide full and open communication between themselves and the voters of the district on then [sic] subject of the retention of Mary Asper; and (4) Failure to perform prescribed duties by attending an improper, closed door executive session, in violation of Alaska law, [cjoncerning the superintendent's decision on the retention of Mary Asper. The Clerk initially determined that the application met the requirements of AS 29.26.260, and issued petitions to the recall sponsors as mandated by AS 29.26.270. Members of the Committee circulated the recall petitions and obtained a sufficient number of signatures. The Committee then filed the petition with the Clerk as required by AS 29.26.290(a). The Clerk certified the sufficiency of the petition and scheduled a recall election for July 20, 1993. However, the Clerk subsequently "rescinded" her prior determination that the grounds for recall were sufficient. The Clerk made a new determination that the petition was "insufficient for failure to allege, with particularity, facts that constitute any of the three statutory grounds for recall." The Clerk based her decision on a recommendation by the Haines Borough Attorney. The Committee promptly filed suit against the Borough and the Clerk, requesting the superior court to declare that the application met the requirements of AS 29.26.240-.360 and to order the Clerk to proceed with the election. The Committee then moved for summary judgment. The superior court granted the Committee's motion for summary judgment in part and, to the extent that summary judgment was not granted to the Committee, the superior court granted summary judgment to the Borough. The only issue addressed by the superior court was whether the grounds set forth in the recall petition complied with the statutory standards of sufficiency. The superior court relied on this court's directive in Meiners v. Bering Strait School District, 687 P.2d 287, 296 (Alaska 1984), that the recall statutes are to be "liberally construed," and stated in pertinent part as follows: Based upon [Meiners v. Bering Strait School District, 687 P.2d 287 (Alaska 1984) ], the court concludes that the first and the fourth paragraphs of the petition include sufficient statements of grounds for recall. Of course, the ultimate decision is left to the voters, who may accept or reject the claims of the petitioners. For the above stated reasons, the committee is entitled to partial summary judgment to the effect that the first and fourth stated grounds for recall must be submitted to the voters. The defendants are entitled to partial summary judgment to the effect that the second and third stated grounds for recall are not sufficient and may not be presented to the voters at a recall election. It will also be the order of the court that the borough clerk proceed immediately to complete all steps necessary to hold the recall election at the earliest possible date. The superior court then entered final judgment. Thereafter, Erich von Stauffenberg, Robert Andrews, Judy Ereckson, Timothy Shields and Richard Folta (Intervenors) moved to intervene in the action. The superior court granted the motion to intervene for the purpose of appealing the grant of partial summary judgment in favor of the Committee. This appeal followed. The superior court later ordered the Borough to pay the Committee's reasonable attorney's fees in the amount of $7,885.50. III. DISCUSSION A. Mootness The Committee argues that this appeal should be dismissed as moot. Specifically, the Committee notes that the recall election was certified many months ago without contest or appeal, and that State policy favors electoral repose. AS 29.26.070(e). In response, the Intervenors argue that although this appeal may be moot, this court should consider the merits because attorney's fees were awarded, and in the alternative, because it falls within the public interest exception to the mootness doctrine. In addition, the Intervenors argue that this appeal is not moot as to Robert Andrews and Ray Staska, whose reputation interests are at stake. In LaMoureaux v. Totem Ocean Trailer Express, Inc., 651 P.2d 839 (Alaska 1982), we overruled cases to the contrary and held that we would review an otherwise moot issue on its merits to determine who the prevailing party is for purposes of awarding attorney's fees. In the present case, the superior court awarded the Committee $7,885.50 in attorney's fees and costs. Thus, based on the reasoning in LaMoureaux, we will consider the merits of this appeal, although moot, because a reversal would require the Committee to repay this award. B. Sufficiency of the Grounds for Recall The Intervenors argue that the superior court erred in concluding that the first and fourth paragraphs of the recall petition contain sufficient statements of grounds for recall. Specifically, the Intervenors argue that the grounds for recall are not legally sufficient and are not stated with particularity. In addition, the Intervenors argue that the superior court erred in failing to determine the truth or falsity of the allegations. 1. The Recall Statutes in Alaska Article XI, section 8 of the Alaska Constitution states: All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature. The legislature provided for the recall of elected and appointed municipal officials in article 3 of AS 29.26. An elected or appointed municipal official may be recalled by the voters after the official has served the first 120 days of his or her term. To begin the recall process, AS 29.26.260 requires that an application for recall petition be filed with the municipal clerk. The application must include, among other things, "a statement in 200 words or less of the grounds for recall stated with particularity." AS 29.26.260(a)(3). The statutory grounds for recall are "misconduct in office, ineom-petence, or failure to perform prescribed duties." AS 29.26.250. If the clerk determines that an application meets the requirements of AS 29.26.260, he or she then issues a recall petition. AS 29.26.270. After the petition is circulated by its sponsors, the clerk determines whether the signatures obtained meet the signature requirements of AS 29.26.280. Then under AS 29.26.290(a)(1), the clerk must certify on the petition whether it is sufficient or insufficient. Sufficient petitions are then submitted to the municipal governing body which schedules a recall election. AS 29.26.310-.320. The statutes offer the recall target an opportunity to make a rebuttal statement of 200 words or less which will be placed on the recall ballot alongside the statement of the charges. AS 29.26.330(2). 2. Legal Sufficiency of the Grounds for Recall As stated above, the legislature has specified that the grounds for recall of municipal officials are "misconduct in office, incompetence, or failure to perform prescribed duties." AS 29.26.250. The right to recall municipal officials in Alaska is therefore limited to recall for cause. See Meiners, 687 P.2d at 295. In reviewing the legal sufficiency of allegations in recall petitions, this court is "in a position similar to a court ruling on a motion to dismiss a complaint for failure to state a claim . [and] we must [therefore] take the allegations as true...." Id. at 300-01 n. 18. Thus, in the present case, we take the facts alleged in the first and fourth paragraphs as true and determine whether such facts constitute a prima facie showing of misconduct in office or failure to perform prescribed duties. Both paragraphs one and four allege that the officials whose recall was sought violated Alaska law on April 6,1993 when the Board went into executive session for consideration of whether to retain Asper as the elementary school principal. Under the Alaska Open Meetings Act, government meetings are required to be open. AS 44.62.310(a). However, certain excepted subjects may be discussed in an executive session including "subjects that tend to prejudice the reputation and character of any person...." AS 44.62.310(c)(2). In City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316 (Alaska 1982), this court held that a city council was authorized by AS 44.62.310(e)(2) to meet in executive session while discussing the personal characteristics of city manager applicants. Id. at 1325-26. Thus, we conclude that the officials whose recall was sought did not violate Alaska law as alleged in paragraphs one and four. Courts from other jurisdictions have held that where recall is required to be for cause, elected officials cannot be recalled for legally exercising the discretion granted to them by law. The recall targets in this case were properly exercising the discretion granted to them by law when they went into an executive session for consideration of whether to retain Asper. We therefore hold that the superior court erred in concluding that paragraphs one and four of the recall petition contain sufficient statements of grounds for recall. 3. Particularity of the Grounds for Recall As stated above, AS 29.26.260(a)(3) requires that the grounds for recall be stated with particularity. "The purpose of the requirement of particularity is to give the officeholder a fair opportunity to defend his conduct in a rebuttal limited to 200 words." Meiners, 687 P.2d at 302. The allegations in paragraphs one and four suggest that it was improper for the Board to enter into the executive session to discuss Asper's retention. However, the allegations fail to state why entering into the executive session was violative of Alaska law. Thus, we hold that paragraphs one and four of the recall petition lack sufficient particularity. 4. Truth or Falsity of the Grounds for Recall This court stated in Meiners that it will not determine the truth or falsity of allegations in a recall petition: "We emphasize that it is not our role, but rather that of the voters, to assess the truth or falsity of the allegations in the petition." Id. at 300 n. 18. This is the position taken by courts from other states. Thus, we hold that the superior court did not err in failing to determine the truth or falsity of the recall allegations. C. Capacity to Sue In its complaint, the Committee described itself as "an unincorporated association of parents and citizens of the Haines Borough," and asserted that it had "the capacity to sue under Civil Rule 17(b)." In its answer, the Borough averred that the Committee lacked the "capacity to sue, not being a bona fide association with an actual existence, sufficient to support capacity to sue under Alaska case law." On appeal, the Intervenors argue that the Committee lacks the capacity to sue under Civil Rule 17(b). In response, the Committee argues that the Borough waived the issue of capacity before the superior court, and therefore, that the Intervenors cannot challenge the Committee's legal capacity on appeal. Specifically, the Committee argues that the Borough did not conduct discovery, move to dismiss, or move for summary judgment on this issue. The superior court did not address the issue of capacity in its final decision. One authority States that since capacity is a threshold defense somewhat analogous to lack of personal jurisdiction or improper venue, it should be considered as waived under Rule 12(h)(1) if not brought to the trial court's attention by a preliminary motion. The defense of lack of capacity can be raised by a motion to dismiss for failure to state a claim, a motion to strike, a motion for judgment on the pleadings, or a motion for summary judgment. The Borough properly pleaded the issue of capacity in its answer, but did not bring the issue to the superior court's attention by a motion to dismiss for failure to state a claim, a motion to strike, a motion for judgment on the pleadings, or a motion for summary judgment. It was incumbent upon the Borough to bring the issue to the superior court's attention and obtain a ruling on it. We conclude that the Borough's failure to do so constitutes waiver and thus decline to consider the issue of capacity on appeal. D. Due Process The Intervenors argue for the first time on appeal that recall targets have a due process right to notice and a hearing under the due process clause of the Alaska Constitution prior to the holding of a recall election to determine the truth or falsity of recall allegations. In response, the Committee argues that this challenge should not be considered as it was not raised below. We agree, and decline to consider this issue presented for the first time on appeal. IV. CONCLUSION We REVERSE the superior court's grant of summary judgment in favor of the Committee and VACATE the superior court's award of attorney's fees to the Committee. . The Haines Borough is a third class borough incorporated pursuant to AS 29.04.030(3) and, as such, the Haines Borough Assembly also serves as the Haines Borough School Board. AS 29.20.300(b). . Alaska Statute 44.62.310(c) provides that certain excepted subjects may be discussed in executive session including "subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion[.]" AS 44.62.310(c)(2). Besides Board members, the following individuals attended the executive session: Asper, her husband Linn Asper, her attorney Richard Folta, and Nancy Billingsley, the superintendent of the Haines School District. The executive session lasted approximately 90 minutes. . Under AS 29.26.250, the grounds for recall of an elected municipal official are "misconduct in office, incompetence, or failure to perform prescribed duties." . Contrary to the allegations contained in the recall petition, several of the recall sponsors were quoted in the press as saying that the recall targets probably did not violate Alaska law. Larry Glackin, one sponsor, was quoted as stating that "[e]veiything [the Board] did was probably strictly legal[.]" Similarly, Shane Horton, another sponsor, was quoted as stating that the Board's conduct may have been legal, "but legal is not necessarily just and right." . The following facts are only marginally related to the issues involved in this appeal. On August 20, 1993, the recall election took place pursuant to the superior court's order. In that election, two of the four recall targets, Arlana Young and Ray Staska, were voted out of office by wide margins. However, the recall targets, sitting as the Borough's election board, refused to certify the results of the election. After being apprised that the recall targets had invalidated the election, the superior court issued an order to show cause. A second recall election was held on November 23, 1993, and all but one of the recall targets were recalled by wide margins. The election was'certified on November 30, 1993. . Alaska Statute 29.26.070(e) provides as follows: A person may not appeal or seek judicial review of an election for any cause unless the person is a voter, has exhausted all administrative remedies before the governing body, and has commenced, within 10 days after the governing body has declared the election results, an action in the superior court in the judicial district in which the municipality is located. If court action is not commenced within the 10-day period, the election and election results are conclusive and valid. .Id. at 840 n. 1; see also Hickel v. Southeast Conference, 868 P.2d 919, 928 (Alaska 1994); T & G Aviation, Inc. v. Footh, 792 P.2d 671, 672 n. 1 (Alaska 1990) (Matthews, J., dissenting). . Because we decide to consider the merits of this appeal based on the award of attorney's fees and costs, we need not determine whether this appeal falls within the public interest exception to the mootness doctrine or whether this appeal is moot as to Robert Andrews and Ray Staska. . This is an appeal from the superior court's grant of partial summary judgment in favor of the Committee. When reviewing a grant of summary judgment, this court must determine "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] on the established facts." Zeilinger v. SOHIO Alaska Petroleum Co., 823 P.2d 653, 656 n. 6 (Alaska 1992). To the extent that this appeal requires this court to construe Alaska's recall statutes, this court exercises its independent judgment and adopts "the rule of law which is most persuasive in light of precedent, policy and reason." Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990). . For a history of the recall process in Alaska, see Meiners, 687 P.2d at 294-96. . Accord In re Recall of Call, 109 Wash.2d 954, 749 P.2d 674, 676 (1988) ("The right to recall elected officials is limited to recall for cause so as to free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations."). . That is, we assume for purposes of review that the Board members entered into a closed door session for consideration of whether to retain Asper, and we determine whether doing so was a violation of Alaska law. . In Meiners, this court stated that a petition which alleges violation of totally non-existent laws is legally insufficient, while a petition which merely characterizes the law in a way different than the targeted official would prefer is legally sufficient. Meiners, 687 P.2d at 301. As to the latter case, this court stated that the "rebuttal statement is the proper forum in which the official may defend against the charges." Id. Given the relevant exception to the Open Meetings Act, the grounds for recall allege a violation of a totally nonexistent law. That is, there is no law which precludes public officials from discussing sensitive personnel matters in closed door executive sessions. . See, e.g., Chandler v. Otto, 103 Wash.2d 268, 693 P.2d 71, 74 (1984); see also 4 Eugene McQuillin, Municipal Corporations § 12.251.15, 12.251.35 (3d ed. 1992). . City Council of Gladstone v. Yeaman, 768 5.W.2d 103, 107 (Mo.App.1988) ("it is not the function of a reviewing court to rule on the truth or falsity of the charges, [but] only to determine the sufficiency of the reasons"); In re Recall of Call, 749 P.2d at 676 ("there can be no inquiry by the court into the truth or falsity of the charges"); In re Recall of Redner, 153 Wis.2d 383, 450 N.W.2d 808, 810 (App.1989) ("when determining whether cause is alleged, it is not the court's function to determine the truth or falsity of the grounds alleged in the petition"); see also 4 McQuillin, supra note 14, § 12.251.35 (the truth of the recall allegations is for determination by the electors alone). .Alaska Civil Rule 17(b) provides: The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile_ A partnership or other unincorporated association may sue or be sued in its common name. Moreover, Alaska Civil Rule 9(a) provides in part: When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. The Borough's answer contained a specific negative averment denying the Committee's capacity to sue. Thus, the Borough sufficiently raised the issue of capacity. . 6A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1559 (2d ed. 1990). . 5 id. § 1294. . See Peoples Bank and Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659, 661 (1986) (court held that party's failure to bring analogous issue of standing to trial court's attention constitutes waiver even though issue was properly pleaded in answer). . Alaska Const, art. I, § 7. . Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991).

10343998

Elizabeth HALBERG, Appellant, v. STATE of Alaska, Appellee

Halberg v. State

1995-09-29

No. A-3733

1090

1100

903 P.2d 1090

903

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:03:24.830289+00:00

CAP

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

Elizabeth HALBERG, Appellant, v. STATE of Alaska, Appellee.

Elizabeth HALBERG, Appellant, v. STATE of Alaska, Appellee. No. A-3733. Court of Appeals of Alaska. Sept. 29, 1995. Hearing Denied Jan. 5, 1996. Margi Mock, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for Appellant. Cynthia L. Herren, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

6448

40350

OPINION MANNHEIMER, Judge. Elizabeth Halberg was convicted of second-degree murder, AS 11.41.110(a)(1), following a jury trial in the superior court. In our previous decision in this case, Halberg v. State, Memorandum Opinion and Judgement No. 2685 (Alaska App., April 28, 1993), we held that Halberg's first statement to the Alaska State Troopers was taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We remanded Halberg's case to the superior court so that it could determine (a) whether Hal-berg's subsequent statements to the troopers were tainted by this Miranda violation at the first interview and (b) whether Halberg should receive a new trial on account of the now-suppressed evidence. On remand, Superior Court Judge Peter A. Miehalski found that Halberg's subsequent statements to the troopers were voluntary and were made after Halberg had received proper Miranda warnings. Judge Miehalski therefore found that these subsequent statements were not tainted by the Miranda violation at the first interview. Halberg appeals this decision. We affirm. According to the State's theory of this case, Halberg stabbed her husband Walter "Hank" Halberg during an argument in their home in Ekwok sometime during the early morning of January 4, 1989. We summarized the pertinent facts in our earlier opinion: Walter Halberg woke up and decided that he wanted to leave [the house]. [Elizabeth] Halberg either did not want him to go or wanted to go with him; the couple argued. During this argument, Halberg stabbed her husband in the chest with a kitchen knife. Walter sat down at the kitchen table and died. Meanwhile, Hal-berg fell asleep on the bed. Halberg woke up and went to [her brother-in-law] John King's house at about 5:00 a.m.; she told King that something was wrong.... King returned with Hal-berg to her cabin and realized almost immediately that Walter Halberg was dead. King tried to convince Halberg to come away from the cabin with him, but Halberg insisted on staying with her husband. King returned home and called [Village Public Safety Officer] [Phillip] Akelkok at approximately 7:15 a.m. to report the situation. Akelkok went to the Halberg cabin, where he found Walter Halberg dead and Elizabeth Halberg asleep. Akelkok called his supervisor, State Trooper Bittiek, in King Salmon. Akelkok received instructions to seal the home and take Halberg to a relative's house until other police officials arrived. Akelkok entered the cabin and shook [Elizabeth] Halberg awake. Halberg protested that she wanted to stay with her husband, but Akelkok and Leroy Wallona, a local resident, escorted Halberg from the house. On their way, Halberg kept repeating that "Hank" (Walter Halberg's nickname) had made her do it, that she had to do it, and that she had not meant to hurt him. The two men brought Halberg by her family's home, but either she did not want to go inside or her parents would not let her in, so she was taken to King's house. Trooper Bittiek arrived in Ekwok around 10:30 that morning. After Akelkok briefed him, Bittiek went to the Halberg cabin, took photographs, and placed Walter Halberg's body into a body bag. The cabin bore no evidence of a struggle, and the stab wound to Walter Halberg's chest was not immediately apparent; Bittick at first believed that Walter had died of natural causes. Later that morning, however, King told Bittick that Halberg admitted to him that she had stabbed her husband; Bittick re-examined Walter's body and confirmed that the death was a homicide. Halberg, Memorandum Opinion and Judgement No. 2685, pp. 3~4. Bittick went to the King residence around noon on January 4, 1989 to interview Hal-berg. Bittick administered Miranda warnings to Halberg, and Halberg told Bittick that she understood her rights. Bittick then asked Halberg if she was willing to speak to him. Halberg replied, "Don't ask me questions. My husband, he's — he went and go visit." Rather than ceasing the interview, Bittick began questioning Halberg. Asked to explain how her husband had died, Hal-berg told Bittick that her husband had stabbed himself: BITTICK: You remember you stuck him with a knife last night? HALBERG: I didn't stick nobody with a knife. He did it to him[self|. Q: You said earlier . A: He did it himself.... You want to see the knife he did it with? . He said, . 'Watch me. Watch me do it, you bitch." . He told me, he said, Watch me, bitch. I could do it." Q: Why did you tell them [King and Akelkok] earlier that you stuck, you stabbed him? A: [I] did nothing to him. I said I hurt him; I hurt him. Q: You hurt? A: I hurt him. Q: Yeah, you said . A: His feelings were hurt, and he said he was gonna do it, and I looked at him, I said, "Hank, you can't do it." He said, Watch me, you fucking whore. Watch me, you fucking bitch." And he did it. Q: Where did the knife go? Did you take the knife then? A: I took [it] and washed it up[.] My husband, he did it. I didn't want him to, but he did it.... I want Hank here. He said he could do it; he said he could do it[J . Take his own, he take his own fucking knife, he take his own knife, and [he] did it. He said, "Nobody loves me here[.]" Oh, but I love him; I loved him. Die myself — I wish to God I would die myself_ Nobody's fault. After hearing this answer, Bittick stopped questioning Halberg because he believed that she had become too emotional to continue the interview. Instead, Bittick told Halberg, "Okay, Lisa, why don't you [lie] down and get some sleep, and we'll talk again later. Okay, just go ahead and [lie] down and get some sleep." Halberg's reply, "Turn the light off', is the last statement of the interview. As indicated, Bittick left Halberg sleeping at John King's house. Bittick did not place Halberg under arrest. That evening, Trooper Ron Belden arrived in Ekwok. At approximately 7:30 p.m., or about seven hours after the first interview, Belden and Bittick conducted a second interview with Halberg at the Ekwok city offices. A third interview was conducted the next day (January 5th) at the Village Public Safety Office, and three additional interviews were conducted on January 6th and 7th — at the village teachers' housing, at Halberg's residence, and again at the city offices. Halberg was never in custody during this time. As noted earlier, we held in our previous decision in this case that Trooper Bittick violated Miranda when he continued to question Halberg after she told him, "Don't ask me questions." Because of this Miranda violation, we directed the superior court to suppress the statements Halberg made during that first interview. We then asked the superior court to determine whether any other evidence should be suppressed on account of this Miranda violation. On remand, Judge Michalski found that the second and subsequent interviews were not tainted by the Miranda violation that occurred at the first interview. In his written decision, Judge Michalski acknowledged: [S]everal portions of the second [and subsequent interviews with] Halberg contain references by the interrogators to [Hal-berg's] first statement, or rely on knowledge [obtained] from the first statement. . [All] statements subsequent to the first one . relate back to one or more prior statements and thus could properly be said to be the fruit of the initial statement[.] . [T]he court does not believe that . it can conclude beyond a reasonable doubt that the contents of the second and subsequent statements would be the same without the first statement. Indeed, such a conclusion is impossible given the fact that the officers at various points refer back to prior answers or statements. Nevertheless, Judge Michalski noted that Halberg's initial statement was voluntary, despite the Miranda violation. (Judge Michal-ski originally made this finding during the initial trial court proceedings, and we affirmed this finding on appeal.) Judge Mi-chalski found that Halberg's second and subsequent statements were also voluntary, and that Halberg made those subsequent statements after receiving proper Miranda warnings and after explicitly waiving her privilege against self-incrimination. Judge Michalski concomitantly found that the troopers had not "recklessly run roughshod over [Hal-berg's] rights", nor had they "act[ed] with disregard to [Halberg's] condition" nor "intentionally manipulate^], frighten[ed,] or abusefd] [Halberg] in order to obtain a desired statement". Citing the United States Supreme Court's decision in Oregon v. Elstad, 470 U.S. 298,105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), Judge Michalski declared that Halberg's second and subsequent statements were admissible. On appeal, Halberg argues that, once Judge Michalski found her subsequent statements to be the "fruit" of her initial statement, the judge was obliged to suppress those subsequent statements. She argues that Judge Michalski misinterpreted Oregon v. Elstad; alternatively, she argues that this court should refuse to follow Elstad and should instead declare that the Alaska Constitution requires a different rule. In essence, Halberg argues that the Alaska Constitution requires that we continue to apply gre-Elstad law. We find it unnecessary to resolve this issue. Even applying pre-Elstad law to the facts of this case as found by Judge Michalski, we conclude that Halberg's subsequent statements are not the "fruit" of her initial statement, at least as that term is normally employed for purposes of the exclusionary rule. Moreover, even though Judge Michalski purported to rely on Elstad as the legal basis for his ruling, Hal-berg's case does not raise any issue under Elstad. To explain our analysis of Halberg's case, it is helpful to summarize the state of the law before Elstad. The Law Before Oregon v. Elstad Under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), a criminal defendant can seek suppression of his or her statements to the police on the ground that those statements are tainted by a prior illegality. For instance, a defendant may claim that his or her confession is the product of statements made at an earlier interview in which the police violated the defendant's privilege against self-incrimination. There are, generally speaking, two ways in which the police may violate a defendant's privilege against self-incrimination. First, the police may use interrogation methods so coercive as to "overbear [the suspect's] will to resist and bring about confessions not fairly self-determined". Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961). In such cases, the defendant's confession is deemed involuntary, and it must be suppressed. Second, the police may violate the rules established in Miranda and succeeding cases — the rules governing the police's duty to inform an arrested suspect of the rights to silence and to counsel, to obtain a waiver of these rights before custodial interrogation, and to respect a suspect's invocation of these rights. Even if the defendant's statement is voluntary, the Miranda violation constitutes an independent ground for suppression. Before Elstad, courts used one legal test to analyze whether a previous Fifth Amendment violation (either an involuntary statement or a statement taken in violation of Miranda) tainted a defendant's subsequent statement. As a preliminary matter, the government had to show that the defendant's subsequent statement was voluntary and, if the defendant was in custody during the subsequent interrogation, that the defendant received proper Miranda warnings and waived his or her rights. Assuming these foundational matters were proved, courts then analyzed the totality of the circumstances to assess whether the defendant's decision to give a subsequent statement was "sufficiently an act of free will to purge the primary taint". Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975), citing Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416. Or, as stated in Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967), courts were to assess whether there was a "break in the stream of events . sufficient to insulate the [subsequent] statement from the effect of all that went before". While Brown involved the claim that a defendant's statement was tainted by his pri- or illegal arrest (a Fourth Amendment violation), the Supreme Court required the same analysis in cases involving violations of the Fifth Amendment. See Westover v. United States (a companion case of Miranda), 384 U.S. 436, 494-96, 86 S.Ct. 1602, 1638-39, 16 L.Ed.2d 694 (defendant's prior statement was taken in violation of Miranda); Clewis v. Texas, 386 U.S. at 710-11, 87 S.Ct. at 1340 (defendant's prior confession was involuntary). See also United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947); Holland v. McGinnis, 963 F.2d 1044, 1050 (7th Cir.1992); United States v. Wauneka, 770 F.2d 1434, 1441 (9th Cir.1985) (discussing other cases involving prior involuntary confessions). In Brown, the government argued that the taint of a prior illegality could always be negated by giving the defendant Miranda warnings. The government asserted that, once the defendant understood that he or she need not say anything to the police, any knowing and voluntary decision to waive that right necessarily constituted an independent act of will that broke the "stream of events". The Supreme Court rejected the government's argument: [The fact that the defendant received] Miranda warnings [before the subsequent statement is] an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But [this] is not the only factor to be considered. The temporal proximity of the [initial illegality] and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62 (footnotes and citations omitted). At the same time, the Brown Court explicitly rejected the notion that the taint flowing from a prior violation of a defendant's rights could be assessed using a causality or "but for" test. That is, the Court refused to accept the argument that suppression should invariably be required whenever the defendant's subsequent statement was the result of prior illegality. While we . reject the [rule that Miranda warnings will always cure a prior illegality], we also decline to adopt any alternative per se or "but for" rule.... The question whether a [subsequent] confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit [the answer] to turn on such a talismanic test. Brown, 422 U.S. at 603, 95 S.Ct. at 2261. Rather, all the circumstances of the defendant's particular case had to be assessed to determine the effect of the prior illegality on the defendant's later decision to submit to police questioning. As later expressed by the Seventh Circuit, "the issue is not causation, but the degree of improper coercion". Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.1992). Accord United States v. Leon Guerrero, 847 F.2d 1363, 1366 n. 1 (9th Cir.1988); Leon v. Wainwright, 734 F.2d 770, 772-73 & n. 3 (11th Cir.1984). The decision whether a defendant's statements are or are not tainted by a prior illegality is ultimately a question of law. While a reviewing court accepts the trial court's findings of historical fact (unless they are shown to be clearly erroneous), the reviewing court independently determines whether, under those facts, the defendant's decision to speak with the police was voluntary and sufficiently insulated from the prior illegality to escape its taint. Duller v. State, 511 P.2d 1058, 1060 (Alaska 1973). Accord United States v. Robinson, 20 F.3d 320, 322 (8th Cir.1994); Holland v. McGinnis, 963 F.2d 1044, 1050 (7th Cir.1992); United States v. Anderson, 929 F.2d 96, 99 (2nd Cir.1991); United States v. Lewis, 833 F.2d 1380, 1384 (9th Cir.1987). The Elstad Decision In Oregon v. Elstad, the Supreme Court distinguished between (1) cases in which the prior illegality is an involuntary confession, and (2) eases in which the prior illegality is a Miranda violation. The defendant in Elstad was arrested on suspicion of burglary; two police officers came to his home, armed with an arrest warrant. After serving the arrest warrant, one of the officers questioned El-stad without giving him Miranda warnings or securing a waiver of his rights. Elstad told the officer that he had been present during the burglary. The officers then transported Elstad to the police station, where he was held in custody. One hour later, Elstad was interrogated by the same two officers. This time, the officers read Elstad the Miranda warnings and secured a waiver of Elstad's rights. Elstad again confessed, this time in more detail. Elstad, 470 U.S. at 301-02, 105 S.Ct. at 1288. The government conceded that Elstad's first statement should be suppressed because of the Miranda violation. Elstad, 470 U.S. at 302, 105 S.Ct. at 1289. However, the government contended that Elstad's subsequent confession at the police station was not tainted by the prior brief interrogation at his home. Id. The Oregon Court of Appeals disagreed. Applying a "totality of circumstances" test, and quoting Clewis v. Texas, 386 U.S. at 710, 87 S.Ct. at 1340, the Oregon . court found that "there was [not] a sufficient break in the stream of events between [the] inadmissible statement and the [later] confession to insulate the latter statement from the effect of what went before". Elstad, 470 U.S. at 303, 105 S.Ct. at 1289-1290. The Oregon court relied heavily on the short amount of time between Elstad's two statements, as well as on the fact that, in his first statement, Elstad had "let the cat out of the bag" by essentially admitting his participation in the burglary. "[T]he coercive impact of [the] unconstitutionally obtained statement remain[ed], because in [the] defendant's mind it ha[d] sealed his fate." Id., 470 U.S. at 303, 105 S.Ct. at 1290. Reversing the Oregon court, the United States Supreme Court declared that, in cases involving the claim that a defendant's statements were tainted by a prior illegality, a distinction had to be drawn between involuntary confessions and Miranda violations. A "break in the stream of events" would continue to be required for cases involving a prior involuntary confession, because an involuntary confession, by definition, violates the defendant's constitutional rights under the Fifth Amendment. However, the Court declared, a Miranda violation does not necessarily show that the defendant's Fifth Amendment rights were violated: [While] [t]he Miranda exclusionary rule . serves the Fifth Amendment^, it] sweeps more broadly than the Fifth Amendment itself. [The Miranda rule] may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use . only of compelled testimony- [U]nwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless by excluded from evidence under Miranda. Thus, in the individual ease, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. Elstad, 470 U.S. at 306-07,105 S.Ct. at 1291-92 (emphasis in the original). Thus, the Supreme Court held, when the prior illegality involves only a Miranda violation and not an involuntary confession, "a careful and thorough administration of the Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible", even when there has been no identifiable break in the action. Elstad, 470 U.S. at 310-11, 105 S.Ct. at 1294. In such eases, the Court declared, the Miranda warning given before the defendant's subsequent interview "conveys the relevant information!,] and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an 'act of free will'." Elstad, 470 U.S. at 311, 105 S.Ct. at 1294 (quoting Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416). The Court explicitly rejected the Oregon court's "cat out of the bag" analysis — the' theory that, having once confessed, a defendant would drop his or her psychological defenses to further interrogation because the defendant would feel that his or her fate was already sealed. The Court rejected this "cat out of the bag" analysis both because the Court disagreed with the psychological theory underlying it and because such a rule would lead to anomalous results. Regarding the psychological underpinnings of the "cat out of the bag" theory, the Court stated: There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect's will and the uncertain consequences of disclosure of a "guilty secret" freely [made] in response to an unwarned but noncoercive question[.] . Certainly, in respondent's case, the causal connection between any psychological disadvantage created by his admission [at the time of his arrest] and his ultimate decision to cooperate [with the authorities] is speculative and attenuated at best. It is difficult to tell with certainty what motivates a suspect to speak.... We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. Elstad, 470 U.S. at 312-14,105 S.Ct. at 1295-96. Regarding the anomalous results of the proposed "cat out of the bag" rule, the Court perceived that, if the lingering "psychological effects of voluntary unwarned admissions" (emphasis in the original) were to taint any later decision to speak, such a rule "would, practically speaking, disable the police from obtaining the suspect's informed cooperation" even when the police had never violated the suspect's Fifth Amendment rights. Elstad, 470 U.S. at 311,105 S.Ct. at 1294. A "eat out of the bag" rule would mean that voluntary statements taken in violation of Miranda would be considered more tainted than involuntary confessions extorted by violence or threats of violence: [E]ven in such extreme cases as Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944), in which police forced a full confession from the accused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession could, with time, be dissipated. Elstad, 470 U.S. at 311-12,105 S.Ct. at 1294. Thus, the Supreme Court in Elstad declared a new rule for cases in which a defendant's initial confession was voluntary but obtained through a Miranda violation.. As explained above, in Brown v. Illinois the Supreme Court declared that the administration of Miranda warnings and a defendant's subsequent voluntary decision to submit to police questioning were not sufficient, in themselves, to erase the taint of a prior Fourth Amendment violation. Until Elstad, this rule applied to all Fifth Amendment violations too. But in Elstad, the Court held that if the prior illegality was a Miranda violation, and if the defendant later voluntarily chose to submit to further questioning after receiving proper Miranda warnings, these warnings and that voluntary decision will ordinarily be sufficient to dissipate the taint of the prior Miranda violation. The defendant's prior unwarned confession will not, of itself, taint the defendant's subsequent decision to waive his or her rights and speak to the police, so long as "the officers [do not] exploit the unwarned admission to pressure [the defendant] into waiving his [or her] right to remain silent". Elstad, 470 U.S. at 316, 105 S.Ct. at 1296. Halberg's Case We now return to the facts of Halberg's case. Judge Michalski ruled that Halberg's second and subsequent interviews with the troopers were the "fruit" of her initial interview with Trooper Bittick because, at various places in the subsequent interviews, the troopers explicitly referred to statements Halberg made at the first interview or they relied on knowledge obtained from Halberg's answers at the first interview. In other words, Judge Michalski found that the second and subsequent interviews were the "fruit" of the first interview because the content of the second and subsequent interviews would have been different had it not been for the statements Halberg made during the first interview. As explained above, even under pr e-Elstad law it was error to employ this "but for" test to analyze whether Halberg's subsequent statements were the fruit of her first interview. Long before Elstad, the Supreme Court explicitly rejected a causation or "but for" test as the method for judging whether a defendant's statement is the result of a prior occurrence. Brown v. Illinois, 422 U.S. at 603, 95 S.Ct. at 2261; Hutto v. Ross, 429 U.S. at 30, 97 S.Ct. at 203-04. The question is not whether the content of the second and subsequent interviews would have been the same if the initial interview had not taken place. Instead, the question is whether Halberg's decision to submit to the second and subsequent interviews was "sufficiently an act of free will to purge the . taint" of the Miranda violation at the first interview. Brown v. Illinois, 422 U.S. at 602, 95 S.Ct. at 2261. Under this test, we must concentrate on Halberg's consent to participate in the subsequent interviews and decide whether this consent was tainted by the statements she made during the first interview. Judge Michalski relied on Elstad when he ruled that Halberg's subsequent interviews were not tainted by the Miranda violation. However, under the facts of this case as found by Judge Michalski, there was no need to rely on Elstad. Even applying the "totality of circumstances" test of pr e-Elstad law, we conclude that there was a sufficient break in the "stream of events" between Halberg's initial interview and her subsequent interviews to attenuate the taint of the Miranda violation. Over the years, the following factors have been used to assess whether a defendant's subsequent statement is the tainted fruit of a prior illegality: the purpose and flagrancy of the initial illegal act, the amount of time between the illegal act and the defendant's subsequent statement, the defendant's physical and mental condition at the time of the subsequent statement, whether the defendant remained in custody or was at liberty during this interval, whether the defendant had the opportunity to contact legal counsel or friends during this interval, whether the subsequent interview took place at a different location, whether the defendant's interrogators were the same officers who committed the prior illegal act, whether the evidence obtained from the prior illegal act affected the defendant's decision to submit to a subsequent interview, whether the police used lies or trickery to influence the defendant's decision, and whether there were other intervening events that affected the defendant's decision. Holland v. McGinnis, 963 F.2d 1044, 1050 (7th Cir.1992); United States v. Patino, 862 F.2d 128, 132-34 (7th Cir.1988); United States v. Wauneka, 770 F.2d 1434, 1440-41 (9th Cir.1985); State v. Baruso, 72 Wash. App. 603, 865 P.2d 512, 516-17 (1993), review denied, 124 Wash.2d 1008, 879 P.2d 292 (1994); People v. Hamilton, 831 P.2d 1326, 1332-33 (Colo.1992); State v. Kirby, 12 Kan. App.2d 346, 744 P.2d 146, 153 (1987), aff'd, 242 Kan. 803, 751 P.2d 1041 (1988). Under pre-Elstad law, the ultimate question — whether the Miranda violation infected Halberg's subsequent interviews, or whether the taint of that violation was sufficiently attenuated to allow admission of Hal-berg's later interviews — is determined by examining all of these factors. As the Supreme Court stated in Brown v. Illinois, "No single fact is dispositive." Brown, 422 U.S. at 603, 95 S.Ct. at 2261. Analyzing Halberg's case in this fashion, we conclude that her subsequent interviews with the troopers were not tainted by the Miranda violation at the first interview. Judge Michalski found that the Miranda violation in this case was not flagrant or purposeful. The judge concluded that "the interrogating officer ha[d] no idea that [Hal-berg's] initial statement [would] be found illegal", since that initial statement was "voluntary, uncoerced[,] and given [after] a Miranda warning". The problem, Judge Mi-chalski declared, was that "[t]he officer should have listened more closely when seeking Ms. Halberg's waiver of Miranda rights." Judge Michalski explicitly found "that the police tried to comply with the duty [imposed by] Miranda " and that the officer "gave the full warning", but then the officer failed to "obtain a proper waiver". There was a significant interval — approximately seven hours — between the first interview at John King's house and the second interview at the Ekwok city offices. Halberg was at liberty during this time, and she came voluntarily to the second interview. When Halberg arrived for the second interview, the troopers again administered full Miranda warnings to her, and Halberg expressly waived her rights and consented to speak to the troopers. One of the factors to be considered, among the totality of circumstances, is whether the same officer conducted both interviews or whether different officers conducted the second interview. Here, two troopers conducted the second interview. One of them, Trooper Bittick, was the trooper who conducted the first interview and who violated Halberg's Miranda rights. However, the fact that the same officer participated in both interviews is significant only in cases where there is reason to believe that the defendant might be intimidated by the officer's presence — for example, when the officer had been overbearing or had used coercive tactics during the first interview. The facts of Halberg's case are readily distinguishable from such eases. As described above, Trooper Bittick questioned Halberg for only a few minutes at the initial interview. After Halberg described watching her husband commit suicide, Bittick took it upon himself to end the interview because he believed that Halberg was not in a fit emotional state to continue. He encouraged Halberg to get some sleep, and he left her at her brother-in-law's house. This record shows that Bittick did not engage in coercive interrogation methods that might have tainted Halberg's later decision to submit to renewed questioning. It does not appear that Halberg's statements from the first interview significantly affected her willingness to engage in renewed conversation with the troopers. Hal-berg did not "let the cat out of the bag" at the first interview. That is, she did not confess to homicide, nor did she even admit assaulting her husband. Instead, she unequivocally stated that her husband had committed suicide. It is true that, during the course of the second interview, the troopers referred a few times to the fact that a prior interview had taken place. It is also true that, on three or four occasions during the second interview, the troopers reminded Halberg of answers she had given during the first interview. However, all of this occurred long after Hal-berg had waived her rights to silence and to the assistance of counsel. The troopers never employed Halberg's prior statements to try to induce her to waive her rights (by suggesting that she might as well talk to the officers since she had already confessed). In fact, Halberg had not previously confessed. As explained above, during the first interview Halberg steadfastly maintained that her husband had committed suicide, stabbing himself before her eyes in a fit of despondency. Halberg's statements at the first interview did not place her at a psychological disadvantage when the time came for her to decide whether or not to consent to the second and subsequent interviews. In Halberg's brief to this court, despite her general attack on Elstad, she asks us to apply Elstad in one respect. Halberg asserts that Elstad stands for the proposition that, if a defendant's first interview is taken in violation of Miranda, then the police are prohibited from using that first interview in any manner during subsequent interviews. However, Elstad does not prohibit all reference to the first interview. Rather, Elstad indicates that the police may not use the defendant's answers from the first interview to secure the defendant's waiver of rights at the commencement of a subsequent interview. See Elstad, 470 U.S. at 316, 105 S.Ct. at 1296: "Nor did the officers exploit the [defendant's] unwarned admission to pressure [the defendant] into waiving his right to remain silent." (Emphasis added.) The Supreme Court's statement must be understood in context. The Elstad Court had just rejected the argument that, if a defendant had previously confessed before receiving Miranda warnings, the defendant's later decision to again confess at a second interview would invariably be the result of psychological pressures stemming from the first confession. The Court ruled that, notwithstanding a first confession, a defendant who had received Miranda warnings would ordinarily be presumed to understand that he or she need not repeat that first confession or add anything to it. Having said this, however, the Court indicated that the matter would be different if the police affirmatively reminded the defendant of the previous confession and suggested that it would be pointless for the defendant to assert his or her rights. When Halberg argues for the broader rule that the subsequent interview can not incorporate or refer to the initial interview in any manner, Halberg patently relies on the "but for" causality test that was rejected in Brown v. Illinois. We also note that, if Elstad were interpreted as Halberg suggests, it would be harder for the State to show lack of taint from a Miranda violation that resulted in voluntary, exculpatory statements (the situation in Halberg's case) than it is for the State to establish lack of taint from a prior involuntary confession (for example, a confession obtained by physical coercion, as in Clewis v. Texas). Such an interpretation of Elstad is not plausible. The fact that, during the second and subsequent interviews, the troopers referred to statements Halberg had earlier made during her first interview is one factor that should be considered among all the circumstances. But a court must assess the totality of circumstances when judging whether Halberg's waiver of her rights at the second interview was knowing and voluntary, and whether the statements she then gave at the second and succeeding interviews were voluntary. Judge Michalski found that, despite the cross-references to statements from the first interview, Halberg's subsequent statements were voluntary. We are obliged to independently assess this question. Dulier v. State, 511 P.2d at 1060. Having independently examined the record, we agree with Judge Michalski. The second and subsequent interviews were not tainted by the Miranda violation at the first interview, and Halberg's statements at these interviews are therefore admissible against her. Judge Michalski further concluded that suppression of the first interview alone does not cast reasonable doubt on Halberg's conviction — that suppression of the first interview does not entitle Halberg to a new trial. Halberg does not challenge this ruling. Accordingly, the judgement of the superior court is AFFIRMED. . See, for example, Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (per curiam). The defendant, who had already concluded a plea bargain with the government, acceded to a government request to be interviewed by government agents and speak about, the crime, even though this was not part of the plea bargain. During the interview, the defendant confessed to the crime charged against him. Thereafter, the plea agreement fell apart, and the defendant asked the court to prohibit the government from using his confession. He argued that his confession should be considered a statement "made in connection with an offer to plead guilty". The Eighth Circuit agreed with the defendant, but the Supreme Court reversed. The Supreme Court stated: The only question in this case is whether a confession is per se inadmissible . because it was made subsequent to an agreed upon plea bargain that did not call for such a confession. . The Court of Appeals reasoned that respondent's confession was made "as a result of the plea bargain" and would not have been made "but for the plea bargain." But causation in that sense has never been the test of voluntariness. The test is whether the confession was extracted by any sort of threats or violence, or [was] obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. Hutto v. Ross, 429 U.S. at 30, 97 S.Ct. at 203-04 (footnote, citations, and quotations omitted). . This view — that Miranda "sweeps broader" than the Fifth Amendment- — was reiterated in Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990): Although recognizing that Miranda rules would result in the exclusion of some voluntary and reliable statements, the Court imposed these "prophylactic standards" on the States, see Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2364-65, 41 L.Ed.2d 182 (1974), to safeguard the Fifth Amendment privilege against self-incrimination_ [These] procedural safeguards . are "not themselves rights protected by the Constitution," Tucker, supra, 417 U.S. at 444, 94 S.Ct. at 2364, . but are instead measures designed to insure that constitutional rights are protected. Harvey, 494 U.S. at 350-51, 110 S.Ct. at 1180-81. . A useful comparison is found in United States v. Carter, 884 F.2d 368, 372-74 (8th Cir.1989), a post-Elstad case in which the Eighth Circuit held that the defendant's second interview with the police was tainted by a prior Miranda violation even though the defendant received full Miranda warnings before the second interview. The Carter court relied on two main factors. First, there had been essentially no break in time between the two interviews; "the [defendant's] second confession came almost directly on the heels of the first". Carter, 884 F.2d at 373. Second, it appeared that the police had pursued a conscious strategy of obtaining as much information as they could from the defendant before they administered the Miranda warnings; then they administered the warnings and asked the defendant to repeat all of his incriminating admissions. Id. And see State v. Nobles, 122 Idaho 509, 835 P.2d 1320 (App.1991), affd, 122 Idaho 470, 835 P.2d 1281 (Idaho 1992), where the court said that, even though a defendant receives Miranda warnings before the second interview, the reviewing court still must determine whether "there is any evidence to suggest that the officers exploited unwarned admissions to pressure [the defendant] into waiving his right to remain silent" at the second interview. . Some courts have recognized that the rationale of the "cat out of the bag" theory applies only when the defendant has made statements that the defendant perceives to be a confession of wrongdoing. A defendant will not feel psychological pressure to waive his or her rights if the defendant does not view his or her prior statements as incriminating. See, for example, United States v. Knight, 395 F.2d 971, 975 (2nd Cir.1968).

10473344

Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Appellant, v. STATE of Alaska et al., Appellees; STATE of Alaska et al., Cross-Appellants, v. Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Cross-Appellee; Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Appellants, v. STATE of Alaska et al., Appellees; STATE of Alaska et al., Cross-Appellants, v. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Cross-Appellees

Kaatz v. State

1975-09-17

Nos. 2259, 2291

1037

1051

540 P.2d 1037

540

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:20:29.736753+00:00

CAP

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

Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Appellant, v. STATE of Alaska et al., Appellees. STATE of Alaska et al., Cross-Appellants, v. Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Cross-Appellee. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Appellants, v. STATE of Alaska et al., Appellees. STATE of Alaska et al., Cross-Appellants, v. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Cross-Appellees.

Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Appellant, v. STATE of Alaska et al., Appellees. STATE of Alaska et al., Cross-Appellants, v. Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Cross-Appellee. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Appellants, v. STATE of Alaska et al., Appellees. STATE of Alaska et al., Cross-Appellants, v. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Cross-Appellees. Nos. 2259, 2291. Supreme Court of Alaska. Sept. 17, 1975. M. T. Thomas and W. G. Ruddy of Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellants, Jeanne Kaatz, Jeanne Lindley and others. Allen T. Compton, Juneau, for appellees. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

7076

42839

OPINION CONNOR, Justice. This appeal and cross-appeal result from a superior court ruling which denied any recovery to two wrongful death claimants. We must decide whether the trial court erred in finding that the negligence of the State of Alaska caused the accident which took the decedents' lives. Additionally, we must decide whether the trial court erred in finding that the decedents' own negligence also contributed to their demise. Finally, if the court below did not err with regard to its findings of fact, we must determine whether the doctrine of contributory negligence should continue to operate as a complete bar to all recovery in cases of this type. I. The decedents, Ronald Lindley and Donald Kaatz, were employed by the Burgess Construction Company in early December 1970. At that time the company was working on a project in Wrangell, Alaska. The project required gravel, which the company customarily obtained from Reid's gravel pit, located three miles south of Pe-tersburg, Alaska, just off the Mitkof Highway. In order to transport the gravel from the Petersburg area to Wrangell, the following procedure was usually utilized. Donald Kaatz, having taken up témporary residence in the town of Petersburg, readied the gravel at the pit for transportation to Wrangell. Periodically, the Burgess Construction Company would send a barge up the Wrangell Narrows to Petersburg. Before leaving Wrangell, the company would place a front-end loader on the barge. Ronald Lindley, an experienced operator of front-end loaders, would accompany the vessel to the Petersburg barge dock, located approximately four miles south of town. Kaatz would meet the barge at the dock and, together with Mr. Lonnie Dreka, who supervised the operation, he would help to prepare the barge to carry the gravel back to Wrangell. When this was done, Kaatz and Dreka would drive Kaatz' pickup truck along the Mitkof Highway to the gravel pit, which was one mile north of the barge dock. Lindley would follow, driving the front-end loader. When the men reached the gravel pit, Lindley would use the loader to fill a truck with gravel. The vehicle was then driven back to the barge dock, where the gravel was placed onto the vessel, along with the front-end loader. Dreka and Lindley then would accompany the barge back to Wrangell and unload it. Kaatz would return to his chores in and around Petersburg. On the evening of December 9, 1970, the barge arrived at the Petersburg dock around 7:00 p. m. Kaatz met the barge when it arrived. Lindley, Dreka and the front-end loader were on board. The weather was overcast, with intermittent rain and drizzle. The temperature throughout the day had hovered in the mid to low thirties. On this particular evening Ronald Lind-ley did not wait for Dreka to finish preparing the barge for loading. Instead, he and Kaatz set out together in the front-end loader, headed north towards the gravel pit. When the balloon-tired vehicle had traveled approximately half of the one mile distance from the barge dock to the gravel pit, it began to descend a slight grade on the Mitkof Highway. At the base of the grade, the road turned to the right. The vehicle did not reach that curve because, as the loader descended the grade, it toppled off the side of the northbound lane over an embankment. Lindley and Kaatz were both killed. The widows of these men each brought wrongful death actions against the State of Alaska. They alleged that the state was negligent in that it had failed to adequately maintain the icy road, so that it would be safe for vehicular traffic. Judge Victor D. Carlson tried the case and rendered a verdict for the defendants. In doing so, he specifically concluded that "[t]he negligence of the State of Alaska [was] a cause of the death of Messrs. Lindley and Kaatz." However, he also found that the icy and very slippery condition of the Mit-kof Highway on the evening of December 9, 1970, "was known to Mr. Kaatz before he climbed into the cab of the loader and it became known to Mr. Lindley immediately when the vehicle proceeded onto the highway." In addition, he found that it was "unreasonable for any person experienced with a front-end loader to operate such a vehicle on the highway" under those conditions. He thus concluded that the contributory negligence of the decedents was a complete defense to their claims. The appellants contend that Judge Carlson clearly erred in finding that the decedents' conduct constituted contributory negligence. Alternatively, they urge us to abandon the doctrine of contributory negligence and adopt a "pure" comparative negligence formula instead. The state, in its cross appeal, contends that the court erred in finding that it was negligent in its maintenance of the road and that such negligence caused the deaths of Lindley and Kaatz. The state also argues that Judge Carlson did not err in finding, that the decedents were negligent and urges us not to abandon the doctrine of contributory negligence in favor of comparative negligence. The record presented in this' case requires us to address each of the contentions that has been raised. II. We shall begin our analysis by determining whether the trial court erred in finding that negligence on the part of both the state and the decedents caused the accident. At the outset it is useful to restate the standard for review of judge-tried cases in which all pertinent claims of error are predicated on an assertion of insufficient evidence. In Alaska Foods Inc., v. American Manufacturer's Mutual Insurance Co., 482 P.2d 842, 848 (Alaska 1971), we stated: "The rule is this: Under Civil Rule 52(a) we shall not set aside the finding of fact of a trial judge unless it is clearly erroneous. A finding is clearly erroneous when, although there may be evidence to support it, we are left with the definite and firm conviction on the entire record that a mistake has been committed. This rule applies to any finding, regardless of the nature of the evidence upon which it is based. The only difference between our review of findings based on oral testimony, and those based on documentary evidence or undisputed facts, is that in the former case we must pay some deference to the trial judge's assessment of the credibility of witnesses, whereas in the latter case, we need not. It is because of the deference we pay to the trial judge's assessment of credibility of witnesses where there is oral testimony that we have characterized our scope of review in cases where there is no oral testimony as being a 'broader' type of review. Even in the latter situation, clear error must appear under the rule we apply. The clearly erroneous standard, as we apply it, means something more than merely showing it is more probable than not that the trial judge was mistaken. We must be convinced, in a definite and firm way, that a mistake has been committed. We must be well persuaded by the party seeking to set aside the trial judge's findings before we will hold he was wrong." (footnotes omitted) With this standard in mind, we turn to the factual issues in this case. The state, in its cross appeal, contends that its highway maintenance crew was not negligent in having failed to sand the Mit-kof Highway before the accident occurred. In State v. Abbott, 498 P.2d 712 (Alaska 1972), we held that the state has a duty to exercise reasonable care to maintain Alaska's highways in safe condition. That duty certainly extends to hazards created by ice and snow. A breach of this duty of care occurs whenever lack of reasonable road maintenance exposes a person to an unreasonable risk of harm. In Abbott we stated: "In order for a plaintiff to show that the state exposed him to an unreasonable risk of harm he would have to demonstrate that the likelihood and gravity of the harm threatened outweighed the utility of the state's conduct and the burden on the state for removing the danger. In making that determination in the case at bar, all of the following factors would be relevant: whether the state had notice of the dangerous condition, the length of time the ice and snow had been on the highway, the availability of men and equipment, and the amount of traffic on the highway." 498 P.2d at 725. (footnotes omitted, emphasis in original) In the present case, the evidence clearly supports a finding of negligence on the state's part. Evidence at trial established that by 6:00 p. m. on the date of the accident, the state had both actual and constructive notice regarding the dangerous condition of the •highway. For example, testimony established that by noon the road was dangerous, and that by 5 :00 p. m. it was extremely dangerous, the worst that some Peters-burg observers had ever seen. In a deposition, the school bus driver stated that he had alerted school authorities of the dangerous road conditions in mid-afternoon. Indeed, the state's road maintenance foreman in Petersburg, Mr. Cecil H. Donahue, conceded that he drove the road between 5 :00 and 6:00 p. m., and he knew then that the road "probably did need sanding." Notice to Donahue was notice to the state in these circumstances. The accident occurred at approximately 8:00 p. m. By that time the road had been in a bad condition for many hours. Since the highway maintenance facility was only about one mile from where the accident took place, time, in conjunction with logistics, would not have been a barrier to sanding the road. Nevertheless, the state did not begin sanding until after the accident. Regarding the availability of men and equipment, suffice it to say that shortly after the accident, the road, in fact was sanded. As to the amount of traffic on the highway, foreman Donahue stated that the accident occurred on the "most heavily traveled" portion of the Mitkof Highway. Other evidence established that, even on that raw, nasty night, numerous other vehicles were on the road. Finally, we have held that an unexcused violation of administrative regulations may be negligence itself, or may be relevant evidence bearing on the issue of negligent conduct. Ferrell v. Baxter, 484 P.2d 250, 263-64 (Alaska 1971). The Department of. Highways has adopted certain "standard operating procedures" with regard to highway maintenance. S.O.P. 4301-06 provides at page 13: "Sanding crews must be dispatched at the first indication that traffic is having difficulty, with particular attention given to intersections and grades. Maintenance crews in outlying areas must keep steep grades and sharp curves well sanded, working overtime and at night if conditions warrant. Maintenance foremen must be alert to this condition and plan accordingly, and employees should be instructed to report for duty when inclement weather threatens. Sanding operations must continue as long as conditions warrant. First priority should be given to hills, intersections and curves. In the vicinity of the more populated areas, sanding crews should be dispatched in sufficient time to provide protection for the early morning and evening traffic proceeding to and from work and school." Certainly the spirit, if not the letter of this regulation, was not complied with. The record, as a whole, shows no clear error whatever in Judge Carlson's finding that the state was negligent. The state also argues that Judge Carlson erred in finding that the state's negligence caused the front-end loader to topple off the road. It contends that the evidence shows that the loader was simply driven off the road. Since there is no indication of slipping or sliding prior to the vehicle falling off the road, the state seemingly reasons that the icy road conditions did not cause the accident. However, appellants never contended that the vehicle slid off the road. Their theory is that in order to obtain traction on a downhill grade with a rightward turn at the end, the driver of the vehicle was forced to allow his rig to go into the snow berm on the side of the road. The accident occurred when the berm suddenly and unpredictably broke through or ran out, causing the rig to topple off. Appellants came forward with several witnesses who had extensive experience with operating heavy equipment. They testified that the driver probably had driven into the berm to obtain traction, and that this was the proper and only recourse available, once the vehicle started down the icy grade. To overcome this showing, the state offered highly speculative testimony to the effect that the men might have simply driven off the road during a moment of inadvertence. In City of Fairbanks v. Schaible, 375 P. 2d 201, 204 (Alaska 1962), we stated: "A mere possibility of causation is not enough. When the matter remains one of conjecture . . . the trial court must find against the party carrying the burden of proof." Appellants produced substantial testimony tending to show that decedents were forced to drive into the snow berm to obtain traction. That the vehicle did not leave the main road before descending the grade also substantiates this theory. We find that no error was made in the ruling that the state's negligence in failing to sand the road was a cause of the accident. Turning to the conduct of the decedents, appellants urge that Judge Carlson erred in finding that Lindley and Kaatz were also negligent on the night of December 9, 1970. Because the facts surrounding the conduct of each man differ slightly, we will consider each case separately. With regard to Ronald Lindley, Judge Carlson found that: "22. The condition of the Mitkof Highway . . . became known to Mr. Lindley immediately when the vehicle proceeded onto the highway. 23. The condition of the Mitkof Highway on the evening of December 9, 1970 was so slippery that it was unreasonable for any person experienced with a front-end loader to operate such a vehicle on the highway except in case of an emergency." Having apparently determined that Lind-ley's conduct was both voluntary and unreasonable, the judge concluded that Lindley's own negligence was a cause of his death. It is well established that knowingly crossing icy terrain in and of itself does not constitute negligent conduct. On the other hand, we have often intimated that knowing or having reason to know of such a dangerous condition is a minimum prerequisite to establishing negligence on the part of a plaintiff. In Ronald Lind-ley's case we must attempt to determine whether it was unreasonable to infer that he knew or should have known of the Mit-kof Highway's icy condition immediately upon entering into it. Our review of the record suggests that, in concluding that Lindley was aware of the road's condition immediately upon entering onto it, Judge Carlson apparently inferred knowledge based on the testimony of witnesses who stated that the road generally was very icy by late afternoon. However, the only direct testimony regarding the condition of the road immediately in front of the barge dock supports the conclusion that Lindley would not have realized the hazardous condition until it was too late to do anything about it, i. e., after the loader started down the grade, one-half mile from the barge dock. Mr. Dreka, who was supervising the men that night, drove his truck, without chains, to the crash scene. He did not recall having any problem driving to the scene. Additionally, a local resident testified that the road conditions varied from one spot to another, and that the area across from the barge landing wasn't always as bad as other spots on the road. Finally, there was no evidence that the loader encountered any difficulty prior to reaching the downhill grade. There is nothing in the record to suggest that it is per se unreasonable to drive a front-end loader on either snowy or wet roads. Although such a vehicle has a propensity for instability on icy roads, every witness with experience on heavy equipment had driven similar equipment in inclement weather. It is well established that something more than the mere occurrence of an accident generally must be shown before an inference of lack of due care will arise. We have previously held that, if there is no evidence from which a judge could reasonably infer contributory negligence, a finding of contributory negligence constitutes clear error and must be reversed. Roach v. Benson, 503 P.2d 1392, 1394 (Alaska 1972). In the case of Ronald Lindley, we are unable to ascertain from the findings of fact which Judge Carlson entered, what evidentiary basis he relied upon in concluding that Lindley's conduct was negligent. Specifically, we are uncertain about the evidentiary underpinnings for finding of fact #22, which states that the slippery condition of the Mitkof Highway "became known to Mr. Lindley immediately when the vehicle proceeded onto the highway." Certainly if Lindley did know of the icy conditions of the road, and yet voluntarily proceeded to drive on it in an unstable front-end loader, that conduct could be found to constitute negligence. But, if Lindley reasonably realized the condition of the road only at a time and place at which it was too late to halt the vehicle, negligence would have to be predicated on something other than the mere fact that he was driving an unstable vehicle in known icy conditions. Therefore, we remand this portion of the case for further findings of fact regarding the basis for the conclusion that Lindley was negligent. In the case of Donald Kaatz, the circumstances are somewhat different. The trial judge found that Donald Kaatz "had driven the portion of the Mitkof Highway which was . . . traversed by the loader within a short time before he climbed into the . . . loader" for the fatal trip. He also found that the condition of the Mitkof Highway "was known to Mr. Kaatz before he climbed into the . loader" that night. Finally, the court found that it was unreasonable to operate a loader under these conditions. Therefore, Judge Carlson concluded that Kaatz' conduct was negligent. There áre several facts in the Kaatz case which support the finding that Kaatz had traveled the road shortly before the accident and therefore knew the condition of the road. First, he was living in Pe-tersburg, four miles north of the barge site, on the day in question. Second, he met the barge when it arrived at about 6:30 or 7:00 p. m. that night, having driven to the barge site in the company's pickup truck. Finally, certain precautionary flares, which Kaatz -usually lit when the company was about to load gravel, were lit when the barge arrived at the Petersburg dock that night. It is entirely reasonable to infer from these facts that Kaatz had driven to the dock shortly before the barge arrived. It seems implausible that Kaatz would have arrived early and waited at the dock for a long time, since the weather was raw and nasty and his home was only a short distance from the dock. Although several witnesses had driven past the dock earlier in the day, there was no testimony placing Kaatz at the dock at any appreciable time before the arrival of the barge. If Kaatz did drive the road shortly before climbing into the loader, then it is apparent that he would have or should have perceived the treacherous and unsánded condition of the road. If, despite such knowledge, he chose to ride in the cab of a vehicle which is notoriously "unstable" • on ice, then his conduct can be properly said to be voluntary and unreasonable. We hold that the trial court did not commit clear error in ruling that Kaatz' conduct that evening was negligent. III. Since we find no clear error in the trial court's ruling that Donald Kaatz was con-tributorily negligent on the night of the accident, we must next decide whether such negligence should continue to operate as a complete bar to recovery in cases such as this. Initially we must consider a procedural objection which the state raises, regarding our review of the issue. The state points out that plaintiff Kaatz first presented the issue of comparative negligence to the trial court on a motion to amend and supplement the court's findings of fact and conclusions of law. It is urged that the issue was not presented below in a timely manner, and therefore is not properly before this court on appeal. We have consistently held that an issue which was not raised in the trial court will not be reached on appeal. Likewise, in jury cases, one cannot await the jury's verdict before objecting to various aspects of the preceding trial. But, in this judge-tried case, appellant called the matter to the attention of the trial court by motion, memorandum and oral argument, and the trial court expressly rejected appellant's contention. Under these circumstances the issue is properly before us on appeal. We now turn to the question of whether the doctrine of contributory negligence should have continued vitality in Alaska. Contributory negligence is the failure of a plaintiff to use due care for his own safety. When contributory negligence is a substantial factor in bringing about a plaintiff's harm, it operates in law to prevent a recovery of damages by him, even though he was injured through the negligence of the defendant. Restatement (Second) of Torts § 463 (1965). This has been the rule followed in Alaska in the past. Saslow v. Rexford, 395 P.2d 36, 41 (Alaska 1964); Ogden v. State, 395 P.2d 371, 372 (Alaska 1964) ; Bertram v. Harris, 423 P.2d 909, 914 (Alaska 1967). The contributory negligence doctrine is of judicial origin. Traditionally it is ascribed to the opinion of Lord Ellen-borough in Butterfield v. Forrester, 103 Eng.Rep. 926 (K.B. 1809). In that case plaintiff was riding on his horse at a fast pace on the highway. He ran into an obstruction in the roadway which had been left there by defendant. While the case can be interpreted as merely a holding that the plaintiff was himself the sole cause of the accident, it gave rise to the broad and sweeping principle described above. This principle held full sway in the nineteenth century and still persists in the twentieth century, although it has undergone modifications and has been replaced in many jurisdictions by some system of comparative negligence. Contributory negligence is an "all-or-nothing" doctrine. When it is operative it is a total bar to recovery by an injured plaintiff. A comparative negligence rule, on the other hand, seéks to apportion damages, i. e., distribute responsibility, in proportion to the degree of fault attributable to the parties who have negligently caused an injury. It should be noted that comparative negligence systems have long been employed in other nations and in various jurisdictions in the United States. In one form or another it is the system employed for apportioning damages in at least 27 states. In federal law comparative negligence has long been employed in admiralty personal injury cases. Under federal statutes it has been applicable since 1908 to cases arising under the Federal Employers Liability Act, 45 U.S.C. § 53, and since 1920 to cases arising under the Jones Act, 46 U.S.C. § 688, and under the Death on the High Seas Act, 46 U.S.C. § 766. It has long been used in other nations of the civilized Western world. Moreover, in England, the source of Butterfield v. Forrester, supra, and its precedential descendants, Parliament abolished the contributory negligence defense in 1945 and replaced it with a pure comparative negligence rule for apportioning damages. The benefits to be derived from a comparative negligence rule are several. It diminishes the need to employ rules which are designed to ameliorate the harshness of the contributory negligence rule. For example, the "last clear chance" doctrine becomes largely superfluous in jurisdictions which employ the comparative negligence rule. It is said that comparative negligence provides a better distribution of risk under a fault system of liability, for both plaintiffs and defendants bene fit to the extent of their respective blameworthiness or lack thereof. The supporters of the contributory negligence rule have argued that fault cannot be measured on a scientific basis, that contributory negligence is a deterrent to careless conduct, that comparative negligence is difficult for courts to administer, and that settlement of negligence cases is encouraged by the contributory negligence rule. Contrary arguments have also been presented. Although jurors' verdicts are not precisely scientific, an allocation of proportionate fault approaches reality more closely than the total loss or victory represented by the contributory negligence rule. As to the deterrent effect of the contributory negligence rule, Dean Prosser points out that the law must also aim to deter wrongful conduct by defendants and not only plaintiffs. Judicial administration of the rule has not presented insuperable difficulties in those jurisdictions which have long employed it. Experience has not borne out the argument that comparative negligence is difficult for courts and juries to apply. Similarly, careful studies tend to show that settlement of cases can be achieved as readily under the comparative negligence system as under the contributory negligence rule. Studies have also shown that the effect of the comparative negligence rule on insurance rates is minimal. The central reason for adopting a comparative negligence system lies in the inherent injustice of the contributory negligence rule. As the California Supreme Court recently observed concerning the contributory negligence doctrine: "It is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the 'all-or-nothing' approach of the doctrine of contributory negligence. The essence of that criticism has been constant and clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault. Against this have been raised several arguments in justification, but none have proved even remotely adequate to the task. The basic objection to the doctrine — grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability — remains irresistible to reason and all intelligent notions of fairness." Li v. Yellow Cab Company, 13 Cal.3d 804, 810, 119 Cal.Rptr. 858, 862, 532 P.2d 1226, 1230-31, (1975) (footnotes omitted). And as Professor Prosser has stated: "The hardship of the doctrine of contributory negligence upon the plaintiff is readily apparent. It places upon one party the entire burden of a loss for which two are, by hypothesis, responsible. The negligence of the defendant has played no less a part in causing the damage; the plaintiff's deviation from the community standard of conduct may even be relatively slight, and the defendant's more extreme; the injured man is in all probability, for the very reason of his injury, the less able of the two to bear the financial burden of his loss; and the answer of the law to all this is that the defendant goes scot free of all liability and the plaintiff bears it all." W. Pros-ser, Torts 433 (4th ed. 1971). Of great significance to us is the recent adoption of a comparative negligence rule by judicial decision in other jurisdictions. In many instances the rule has been adopted through legislative action, but increasingly it is perceived that a rule which is judicial in origin can be, and appropriately should be, altered by the institution which was its creator. Thus Florida in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and California in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226 (1975), through the judicial process have overturned the contributory negligence rule and have replaced it with the comparative negligence principle. We are also particularly impressed with a recent decision of the United States Supreme Court in the field of admiralty. In United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975), the Court discarded the historic rule of divided damages in maritime collision cases and replaced it with a pure comparative negligence rule. Hereafter liability for property damages in admiralty collision cases will be allocated in proportion to the fault of each party. The Court's reason for abandoning the divided damages rule is relevant to our consideration of the contributory negligence rule: the divided damages rule, like the contributory negligence rule, yields palpably crude and inequitable results in cases where the degree of fault is greatly disproportionate. Furthermore, the Court was persuaded by the rejection of the rule by every other maritime nation in the world. All other maritime nations, including England where the rule emerged, employ a proportionate fault measure of damages in marine collision cases. It appears to us that continued adherence to the contributory negligence rule, absent legislative change, represents judicial inertia rather than a reasoned consideration of the intrinsic value of the rule. We are persuaded that the contributory negligence rule yields unfair results which can no longer be justified. We hold, therefore, that the doctrine of contributory negligence shall no longer be applicable in Alaska, and in its stead the principle of comparative negligence must be applied. Systems of comparative negligence can take several forms. Under a "pure" form the plaintiff's damages are simply reduced in proportion to the amount of negligence which is attributed to him. There are also several "modified" forms of comparative negligence. One of these is the divided damages rule in maritime collision cases, which has now been abolished. Another is the 50% system, applicable by statute in many of the states. Under that system a negligent plaintiff may recover so long as the amount of his fault does not exceed 50% of the total fault attributable to the parties. We are convinced that the pure system is the one which is the simplest to administer and which is best calculated to bring about substantial justice in negligence cases. It is the system most favored by modern jurists and commentators. We will employ the pure system of comparative negligence hereafter in Alaska. Our adoption of this new principle does not, of course, end our judicial tasks in this area. Subsidiary questions and problems concerning the relationship of the new rule to other doctrines of tort law must necessarily be adjudicated in the future. We must, for the most part, await future cases for the further development of law in this field. We are, however, prepared to deal with one facet of the comparative negligence rule at this time: the status of the doctrine of "last clear chance". The rationale underlying this doctrine is that even though the plaintiff has been contrib-utorily negligent he should still be able to recover his entire damages if the defendant had the last opportunity to avoid the accident. The application of the doctrine is particularly apt in cases where the plaintiff is in a helpless predicament, owing to his own negligence, and the defendant, although perceiving plaintiff's situation and realizing the plaintiff's peril, fails negligently thereafter to avoid injuring the plaintiff. Unfortunately the search for limits to the doctrine and for the proper sphere of its application has led to great confusion in the law of tort, much of which can probably never be dispelled. But it is recognized by nearly all who have reflected upon the subject that the last clear chance doctrine is, in the final analysis, merely a means of ameliorating the harshness of the contributory negligence rule. Without the contributory negligence rule there would be no need for the palliative doctrine of last clear chance. To give continued life to that principle would defeat the very purpose of the comparative negligence rule — the apportionment of damages according to the degree of mutual fault. There is, therefore, no longer any reason for resort to the doctrine of last clear chance in the courts of Alaska. Lastly, we must determine the extent to which the rule we have announced today shall have application to cases other than those which are filed in the future. The rule will, of course, apply in the retrial of the case in which we have reversed the judgment today. It will also apply to any case in which the trial commences after the date of this opinion. In any case pending on direct appeal in which the application of the comparative negligence rule was requested or asserted in the trial court, and in which the request or assertion was preserved as a ground for appeal, there shall be a retrial under the principle of comparative negligence. Our holding today will be applicable to any trial which has commenced, but has not been submitted for decision by the trier of fact, and in which prior to submission to the trier of fact for decision there has been a request or an assertion that the rule of comparative negligence should be applied. • We observe that in the present case defense counsel offered no evidence with regard to the issue of damages. This may have occurred because of a belief by defense counsel that under the contributory negligence doctrine plaintiffs' claims should have been barred entirely. Since we have abandoned the contributory negli gence doctrine today,'we feel that it is appropriate to require a new trial on the issue of damages. We remand this case to the superior court for further proceedings consistent with this opinion. Affirmed in part, reversed in part. BURKE, J., not participating. . Judge Carlson indicated on the record that he did not favor the doctrine of contributory negligence, but was constrained by precedent to apply it. . Accord, Ficke v. Alaska Airlines, 524 P.2d 271, 274 (Alaska 1974). . See also State v. T Anson, 529 P.2d 188, 193-94 (Alaska 1974). . Compare Tetreault v. State, 50 Misc.2d 170, 269 N.Y.S.2d 812 (Ct.Cl.1966), where the state began sanding ½ hour after it became aware of the icy conditions. The court found that the state was not negligent, despite its failure to reach and sand that portion of the highway where the accident occurred. . This does not mean that proof of subsequent repairs is to be admitted as direct evidence of negligence. Cf. Otis Elevator Co. v. McLaney, 406 P.2d 7, 15 (Alaska 1965); Gunsolus v. City of Fairbanks, 391 P.2d 13, 14 (Alaska 1964); City of Anchorage v. Steward, 374 P.2d 737, 739-40 (Alaska 1962). Rather, Alaska's position on this matter comports with the Federal Rule of Evidence 407, which provides: "When, after an event, measures are taken which, if taken previously,, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." (emphasis added) Specifically, in State v. Abbott, 498 P.2d 712, 725 (Alaska 1972), we held that "availability of men and equipment" is a relevant factor in determining whether lack of road maintenance exposed plaintiff to an unreasonable risk of harm. Such evidence is crucial in determining whether a defendant could have done what plaintiff is claiming should have been done. Therefore, the fact that the road maintenance crew in the present case did sand the Mitkof Highway shortly after the accident is admissible to prove that the- road also could have been sanded before that time. . Cf. Hale v. O'Neill, 492 P.2d 101, 103 (Alaska 1971); Young v. State, 491 P.2d 122, 124-25 (Alaska 1971). . Kremer v. Carr's Food Center, Inc., 462 P.2d 747, 752 (Alaska 1969); Cummins v. King & Sons, 453 P.2d 465, 467 (Alaska 1969); Hale v. City of Anchorage, 389 P.2d 434, 436 (Alaska 1964); Peterson v. Lang, 239 Minn. 319, 58 N.W.2d 609, 612 (1953). . See Roach v. Benson, 503 P.2d 1392, 1394 (Alaska 1972); Cummins v. King & Sons, 453 P.2d 465, 467 (Alaska 1969); Saslow v. Rexford, 395 P.2d 36, 41 (Alaska 1964); Hale v. City of Anchorage, 389 P.2d 434, 436 (Alaska 1962). .Nothing in Judge Carlson's findings or in any of the briefs on record suggests that Lindley had any knowledge of the road's condition prior to going onto it. Nor is it likely that he would have had such prior knowledge since he did not live in Petersburg, and had arrived at the barge dock only shortly before the accident occurred. . See Cummins v. King & Sons, 453 P.2d 465, 467 (Alaska 1969); W. Prosser, Torts, § 39 at 211 (4th ed. 1971); 11 Blashfield, Automobile I .aw and Practice, § 417.2 at 116 (1968). . The state has argued that certain other facts established Lindley's negligence that night. Thus, it has been noted that Lindley departed in the loader without advising Dreka of his departure. While the "usual practice" consisted of Dreka and Kaatz preceding Lindley and the loader with a pickup truck, there was no evidence that a variation from the normal procedure had any bearing on the accident. The state has noted that Lindley and Kaatz were both riding in the loader's cab in violation of company policy. While this is not disputed, there is no evidence showing any causal connection between the violation and the accident. In addition, evidence suggests that the presence of two men in a cab is not uncommon. Finally, there was evidence that another loader was already at the gravel pit and therefore it might not have been necessary to drive the death vehicle at all that night. This fact is only relevant if Lindley had been aware of the road's condition. . We note that the state has devoted one paragraph to this procedural contention, and has not cited any authority in support of its claim. This normally would render the state's claim non-meritorious. Wernberg v. Matanuska Electric Association, 494 P.2d 790, 794 (Alaska 1972). However, because of the importance of the issue in question, we will briefly address the argument. . See, e. g., University of Alaska v. Simpson Building Supply Co., 530 P.2d 1317, 1324 (Alaska 1975); Powell v. Alaska Marine Equipment, Inc., 453 P.2d 407, 410 (Alaska 1969). . See Veal v. Newlin, Inc., 367 P.2d 155, 157 (Alaska 1961). . Cf., Church v. Roemer, 94 Idaho 782, 498 P.2d 1255, 1258 n. 3 (1972); Williams v. Idaho Potato Starch Co., 73 Idaho 13, 245 P.2d 1045, 1050 (1952). . See V. Schwartz, Comparative Negligence 3—4 (1974). Apparently Lord Ellenborough's rationale is somewhat terse : "[A] party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not himself use common and ordinary caution to be in the right." 103 Eng.Rep. at 927. . See Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 864, 532 P.2d 1226, 1232, n. 6 (1975). These states include Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, Wyoming, and most recently, California. . See V. Schwartz, supra note 16, at 9-10. These countries include Austria, Canada, France, Germany, the Philippines, Portugal, and Spain. . Law Reform Act of 1945, 8 & 9 Geo. 6, c. 28. . See V. Schwartz, supra note 16, at 339-41. . Id. at 335-37. . W. Prosser, Comparative Negligence, 51 Mich.L.Rev. 465, 468 (1953). . Rosenberg, Comparative Negligence in Arkansas : A "Before and After" Survey, 36 N.Y.S.B.J. 457 (1964). It has been reported that in maritime personal injury cases involving a federal question, in which a comparative negligence standard is used, only 9.6% of the cases terminated in 1974 ever reached trial. Annual Report of the Director of the Administrative Office of the United States Courts, Table C4, at 429 (1974). This supports the argument that a comparative negligence standard does not seriously discourage settlements. .Y. Schwartz, supra note 16, at 337-38. . See Leflar, Comments on Maki v. Frelk, 21 Vand.L.Rev. 918, 926-29 (1968). . Contra, Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445, 447 (1968); Krise v. Gillund, 184 N.W.2d 405, 409 (N.D.1971). . There are numerous variations of the modified system. These are discussed at length in V. Schwartz, supra note 16, at 73-82. . See, e. g., Hoffman v. Jones, 280 So.2d 431, 436-37 (Fla.1973); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 872, 532 P. 2d 1226, 1240 (1975); United States v. Reliable Transfer Co., 421 U.S. 397, 401-410, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); V. Schwartz supra note 16, at 341-48. . The doctrine had its origins in the English case of Davies v. Mann, 152 Eng.Rep. 588 (1842). Plaintiff there left his ass fettered upon the highway, and the defendant drove into it. It was held that plaintiff could recover, despite his negligence, if the defendant might by proper care have avoided injuring plaintiff's animal. One commentator has said, "[T]he doctrine has been in search of a lucid rationale ever since." V. Schwartz, supra note 16, at 129. . See the discussion in W. Prosser, Torts, 427-33 (4th ed. 1971). . See, e. g., id. at 433; Cushman v. Perkins, 245 A.2d 846, 850 (Maine 1968); Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 869, 532 P.2d 1226, 1237 (1975). . This is not to say that the notion of last clear chance is unavailable as a matter of trial court advocacy. Either party may attempt to persuade the trier of fact that one party or another should bear a greater proportion of the liability for an accident by reason of the factual pattern adduced, including a consideration of the helplessness or inattentiveness which may have led to a plaintiff's predicament, with subsequent injury at the hands of a negligent defendant.

10582767

Marvin Lee HOFFMAN, Petitioner, v. STATE of Alaska, Respondent

Hoffman v. State

1965-08-02

No. 562

644

647

404 P.2d 644

404

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:03:35.076971+00:00

CAP

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

Marvin Lee HOFFMAN, Petitioner, v. STATE of Alaska, Respondent.

Marvin Lee HOFFMAN, Petitioner, v. STATE of Alaska, Respondent. No. 562. Supreme Court of Alaska. Aug. 2, 1965. Burton C. Biss, of Butcher & Biss, Anchorage, for petitioner. John K. Brubaker, Dist. Atty., and John L. Devney, Asst. Dist. Atty., Anchorage, for respondent. Before NESBETT, C. J., and DIMOND and RABINO WITZ, JJ.

1956

11738

RABINO WITZ, Justice. The issue before us is whether a probationer without the means to hire counsel has the right to court appointed counsel in a probation revocation proceeding. The' question is one of first impression in this jurisdiction. AS 12.55.110 governs revocation of probation proceedings. This section of our Code of Criminal Procedure provides that: When sentence has been suspended, it shall not be revoked except for good cause shown. In all proceedings for the revocation of a suspended sentence, the defendant is entitled to reasonable notice and the right to be represented by counsel. (Emphasis furnished.) Although AS 12.55.110 is couched in terms of revocation of a "suspended sentence," in light of the provisions of AS 12.55.080 it is apparent that AS 12.55.110 is applicable to probation revocations. At the time petitioner came before the lower court for hearing upon the petition for probation revocation which had been filed against him, the following exchange took place between the court and petitioner: THE COURT: Are you going to retain counsel or are you going to represent yourself this morning? MR. HOFFMAN: Yes. THE COURT: How long will it take you to get an attorney? MR. HOFFMAN: Sir, I can't get one by myself. THE COURT: Well, I'm not going to appoint for you an attorney on this sort of a hearing. You may have an opportunity to have additional time to consider or to arrange your own counsel, but I'm not going to appoint an attorney for you. How much time do you need? MR. HOFFMAN: Well, there's no way I'll be able to get one, sir. THE COURT: Well, how much time before you're prepared to defend • yourself, if you intend to, on these allegations made in the affidavit petition? MR. HOFFMAN: I'm ready now, I guess. The hearing then continued and at its conclusion the court found that petitioner had violated the terms and conditions of his probation and revoked petitioner's probation. We hold that petitioner has, by virtue of the provisions of AS 12.55.110, the same right to he represented by counsel at a probation revocation proceeding as does the probationer who has funds with which to hire counsel. In short, we cannot ascribe to our legislature an intent to draw a distinction, along economic lines, as to which probationers were to be accorded this statutory right to counsel. To construe AS 12.55.110 as embodying an intended dichotomy between probationers unable to afford counsel and others would, in our opinion, render the statute repugnant to the Equal Protection Clauses of both the Federal and Alaska Constitutions. It is our duty to reasonably construe statutes to "avoid a danger of unconstitutionality." Territory of Alaska v. Craig Enterprises, Inc., 355 P.2d 397, 403, 84 A.L.R.2d 1082 (Alaska 1960). The Supreme Court of the United States has in its decisions in Lane v. Brown, 372 U.S. 477,83 S.Ct. 768,9 L.Ed.2d 892 (1963); Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), struck down distinctions between indigents and those with means in regard to post conviction remedies. Admittedly these three decisions involved appeals in criminal cases and were not concerned with probation or parole issues, but as was observed by Judge Sobeloff, in reference to these cases, in his concurring opinion in Jones v. Rivers, 338 F.2d 862, at 876 (4th Cir. 1964): [T]here is no reason to attach significance to their technical classification as criminal rather than civil; the underlying feature to be noted is the fact that the liberty of the individual was involved. What we do today is to refuse to sanction any discriminatory application between indigent probationers and others in the administration of the right to counsel granted by AS 12.55.110. In reaching this conclusion we have rejected the state's contention that this court does not have jurisdiction to decide the issue of the right to court appointed counsel in the probation revocation proceeding in question. In support of this contention, the state argues that if the proceeding here is in the nature of an original application for a writ of habeas corpus, then petitioner has not complied with Supreme Ct.R. 33 (a)- Although petitioner has failed to comply with the requirements of subsections (2) and (5) of Rule 33(a), we are of the opinion that in view of the circumstances of this case, strict adherence to the provisions of Rule 33(a) should be dispensed with in order to avoid injustice. The matter initially came before this court in November of last year when petitioner wrote complaining that he was denied appointed counsel at the time his probation was revoked. In view of the seriousness of the issue and importance of the right asserted, we treated this letter as an original application to this court for a writ of habeas corpus. We hold that petitioner's pro se application for a writ of habeas corpus is properly before us despite his technical failure to comply with the provisions of Rule 33(a). The petition for a writ of habeas corpus is granted. The lower court's order of October 1, 1964, revoking petitioner's probation is reversed. The case is remanded for appointment of counsel for petitioner and further proceedings upon the September 29, 1964, petition for probation revocation. The custody of petitioner pending such further proceedings shall be determined by the superior court. . There is no issue in this appeal as to petitioner's indigency and nothing appears in the record which would lead us to question petitioner's indigency. . The decisions in Hulse v. Potter, 17 Alaska 353 (D.Alaska 1957) and United States v. Feller, 17 Alaska 417, 156 F. Supp. 107 (D.Alaska 1957), were not concerned with this precise issue. . This statute was first enacted in 1929. See S.L.A.1929, cli. 94, § 2. The title of the 1929 Act reads: AN ACT to provide for suspending sentences in the courts of the Territory of Alaska and repealing Chapter 54 of the Laws of Alaska, 1923. Section 2 of the Act provided: Whenever sentence has been stayed and suspended as provided in this Chapter, such suspension shall not be revoked except for good cause shown, and in all proceedings for the revocation of suspension of sentence, the defendant shall be entitled to reasonable notice and the right to be represented by counsel. Section 3 of the Act provided: This Act shall apply to the District ' Courts of the Territory of Alaska and the Courts of United States Commissioners acting as Justices of the Peace, provided that all proceedings for the revocation of suspension of sentences in Justice Court, may bo reviewed in the District Court, as in other cases by law provided. Section 2 of the 1929 Act has been reenacted without substantial change. See § 5406 C.L.A. (1933); § 66-16-32 A.C.L.A. (1949); S.L.A.1962, eh. 34, § 8.11. . In regard to the suspension of sentence and probation, AS 12.55.080, at the time petitioner was sentenced, provided: Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, any court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best. Since February 1964, AS 12.55.080 has been repealed and reenacted twice. See S.L.A.1964, ch. 43, § 24; S.L.A.19G5, cli. 68, § 8. . On February 21, 1964, after pleading guilty to burglary and larceny charges petitioner was sentenced to three years' imprisonment with all but five months suspended. Petitioner was placed on probation for the period of the suspended sentence. After having served the five month period of incarceration and during the period petitioner was on probation, a petition to revoke his probation was filed in the lower court on September 29, 1964. On October 1, 1964, petitioner appeared for hearing upon the petition which alleged in part that the petitioner had violated the express conditions of his probation in that: (1) On or about September 23, 1964, the defendant stole in excess of $200.00 from the home of his step-mother and father. (2) That the defendant failed to report to the offices of the Youth & Adult Authority as instructed during the months of August and September 1964. (3) That the defendant changed his occupation and place of residence without notifying the Youth & Adult Authority. . During the- hearing petitioner admitted that he.had violated his probation as alleged in paragraphs (1) and (3) of the petition for probation revocation (See note 5, supra). The lower court on the same day as the hearing also entered a final order which read in part: That the balance of the sentence imposed upon the defendant the 21st day of February 1964 be and it is hereby placed into execution. . United States Constitution, art. XIV, § 1, provides in part: No State shall deny to any person within its jurisdiction the equal protection of the laws. Alaska Constitution, art. I, § 1, provides in part: Inherent Rights. This constitution is dedicated to the principles that all persons are equal and entitled to equal rights, opportunities, and protection under the law . .In Jones the question before the court was whether due process requires that an indigent parolee be provided with appointed counsel at parole revocation proceedings before the District of Columbia Board of Parole. Under the provisions of D.C.Code, § 24^-206 (1961), a parolee at a parole violation hearing "may be represented by counsel." The majority in Jones concluded that due process did not require appointed counsel for an indgent parolee. . Supreme Ot. R. 33(a) provides in part: (a) Original Applications for Relief. The granting by this court or a justice thereof, on original application, of relief heretofore available by writs authorized by law, is not a matter of right but of sound discretion sparingly exercised. The procedure for obtaining such relief shall be as provided by Rules 26 to 33, except as follows: * ⅞ ⅜ ⅜ ⅝ * ¾: ⅜ (2) The petition shall set forth with particularity why the relief sought is not available in any other court, or cannot be had through appellate processes of appeal or petition for review. (5) If the petition seeks issuance of a writ of habeas corpus, it shall comply with the requirements of statutes relating to habeas corpus, and shall state the reasons for not making application to the superior court. The petition shall also specifically set forth how and wherein the petitioner has exhausted all other remedies available to him by law or rule. Proceedings under this paragraph (5) shall be ex parte, unless the court or a justice thereof otherwise orders. . Supreme Ct. R. 52 provides; Construction. These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by this court where a strict adherence to them will work surprise or injustice. . Habeas corpus is a proper remedy for an imprisonment or restraint that is contrary to fundamental law. Fay v. Noia, 373 U.S. 391, 401-402, 408-409, 414, 83 S.Ct. 822, 9 L.Ed.2d 837, 846t-847, 850-851, 854 (1963). . See S.L.A.1965, ch. 50.

10466419

Philip J. HOWARTH, Appellant, v. FIRST NATIONAL BANK OF ANCHORAGE, Appellee

Howarth v. First National Bank of Anchorage

1975-09-24

No. 2203

486

492

540 P.2d 486

540

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:20:29.736753+00:00

CAP

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

Philip J. HOWARTH, Appellant, v. FIRST NATIONAL BANK OF ANCHORAGE, Appellee.

Philip J. HOWARTH, Appellant, v. FIRST NATIONAL BANK OF ANCHORAGE, Appellee. No. 2203. Supreme Court of Alaska. Sept. 24, 1975. Stephen S. DeLisio of Merdes, Schaible, Staley & DeLisio, Anchorage, for appellant. Roger Cremo and John R. Beard, Anchorage, for appellee.

2555

15092

OPINION Before RABINOWITZ, C. J., and CONNOR, ERWIN, and BOOCHEVER, JJ- CONNOR, Justice. This is an appeal from the superior court's granting of appellee First National Bank of Anchorage's motion for summary judgment. I In August of 1961, Philip J. Howarth, appellant, was the owner of an improved piece of real property located in Spenard, Alaska. At that time the First National Bank of Anchorage, appellee, was the beneficiary of a first deed of trust security interest in the property and prior to September 6 or 7, 1961, retained in its possession certain policies of insurance written by Fireman's Fund Insurance Company and Reliance Insurance Company protecting the real property against fire loss. On August 22, 1961, appellant and Progressive Enterprises, Inc., entered into a real estate contract with Howarth as seller and Progressive as buyer. Pursuant to the terms of that contract, Progressive was required to maintain fire insurance on the premises until the purchase price was paid. Upon consummation of his agreement with Progressive, appellant wished to cancel the insurance he had obtained and receive a premium refund. Progressive told him that it was buying insurance from the Pfeifer agency. Pfeifer informed appellant that the necessary insurance had been bound but not written. Upon receiving that information, appellant went to appellee bank to obtain his policies. He told the bank's officer, Jack Linton, what Pfeifer had said and instructed Linton to give him the policies held by the bank if he, Linton, could verify that Progressive had obtained substitute insurance. Linton assured appellant that there was presently adequate insurance and gave appellant the Reliance policy to have it can-celled. For reasons unknown to Howarth the Fireman's Fund policy was not also given to him to be cancelled at that time. However, that policy was somehow delivered to an insurance agent on or about September 7, 1961, and it too was can-celled. At the same time, appellant executed, on the bank's form, an assignment of all his right, title and interest in all monies due or to become due to him under the real estate contract with Progressive. In return for that assignment the bank released its security interest in the property. According to appellant, the bank, as consideration for the assignment, agreed to undertake the duty of protecting and preserving his security interest in the property. On September 10, 1961, the real property in question sustained severe fire damage. Several days after the fire Howarth learned that Progressive had not, in fact, obtained insurance on the premises. How- arth then made claim upon the Fireman's Fund and Reliance policies, hut both of those companies denied coverage on the ground that the policies had been cancelled prior to the fire. Howarth filed this suit for breach of contract on September 11, 1967. The bank moved for summary judgment on three theories: 1. That, as a matter of law, there existed no contract for the bank to breach; 2. That even if there was a contract, any action upon it was barred by the statute of limitations ; 3. That even if there was a contract, any action upon it was barred by the statute of frauds, AS 09.25.010(a) (l). In support of its motion, the bank presented to the court a memorandum of points and authorities; an affidavit from Jack Linton; a copy of the deed of trust; a copy of the contract of sale executed by appellant and Progress Enterprises, Inc.; a copy of the escrow agreement signed by appellant and Progressive Enterprises, Inc.; a copy of the assignment executed by appellant in favor of appellee; and a copy of the 1973 deposition of appellant. Howarth, in opposition to the motion for summary judgment, submitted to the court a statement of genuine issues of fact in which he alleged, inter alia, that there was a genuine issue of fact with respect to whether a contract existed between the parties. In support of his contention that a contract existed, he referred to portions of his 1973 deposition. The superior court based its granting of a summary judgment in favor of appellee on two grounds; first, that the statute of limitations had run on a contract cause of action; second, that the contract did not comply with the statute of frauds. The court refused to decide the issue of whether a contract existed between the parties. Appellant seeks reversal of the court's granting of the summary judgment in order that he may have a trial on the merits of his case. In order to decide whether the trial court erred in granting the motion for summary judgment, we must resolve the following issues: 1. Did a contract exist between the parties? 2. Does the statute of limitations preclude relief? 3. Does the statute of frauds bar relief? We will consider these issues in turn. II Since the bank moved for summary judgment, it had the initial burden of establishing the absence of a genuine issue as to any material fact and that, based on such undisputed fact, it was entitled to a judgment as a matter of law. Once the bank made out a prima facie case, How-arth was required, in order to prevent entry of summary judgment, to set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute or contradict the bank's evidence, and thus demonstrate that a material issue of fact existed. All reasonable inferences of fact from the proffered materials had to be drawn against the bank and in favor of Howarth. Oral contracts are often, by their very nature, dependent upon an understanding of the surrounding circumstances, the intent of the parties, and the credibility of witnesses. If a dispute exists with respect to the terms of the oral contract, then summary judgment is not appropriate. Instead, the trier of fact in a trial setting should make the final determination with respect to the existence of the contractual agreement. However, if there is no factual dispute, then an oral contract is as much capable of being resolved by means of summary judgment as is a written contract. Howarth contends that the bank, in exchange for his giving the assignment to the bank, agreed to undertake the duty of protecting and preserving his security interest in the property. According to How-arth, although this oral contract was formed at the same time as the assignment was executed, the assignment does not embody the contract. The bank denies that it entered into an oral agreement with How-arth. Since this case clearly involves a factual dispute, we hold that Howarth is entitled to a full trial on his claim that an oral contract existed between the parties and that summary judgment is not an appropriate means of disposing of this claim. Ill The superior court found that the contract, which obligated the bank to compensate Howarth for losses caused by fires, was breached when the bank agreed to purchase insurance but failed to do so, i. e. on September 6, and that, therefore, the six-year statute of limitations applicable to contract actions had run at the time appellant filed suit. In his brief, Howarth argues that no breach occurred prior to September 10, 1961, the date of the fire, because the contract could not be breached prior to the time of loss. According to appellant, breach required two elements; first, the property had to be damaged; and second, he had to sustain a loss as a result of that damage. Moreover, even if a breach occurred prior to September 10, 1961, the fiduciary nature of the relationship between appellant and appellee precluded the statute of limitations from running prior to the time when appellant either had actual knowledge of the breach or should, in the exercise of ordinary care, have had such knowledge. The bank, in its brief, did not respond to appellant's argument with respect to the statute of limitations. However, in its memorandum in support of its. motion for summary judgment, the bank argued that "[i]f the bank's promise was to refrain from delivering the old policy in the absence of new insurance, the bank breached that promise . . . when it delivered the old policy on September 6, 1961. Plaintiff did not commence this action against the bank until September 11, 1967, at which time his cause of action was barred by AS 09.10.050." The statute of limitations begins to run in contract causes of action from the time the right of action accrues. Warren v. U. S., 199 F. 753, 757 (5th Cir. 1912). This is usually the time of the breach of the agreement, rather than the time that actual damages are sustained as a consequence of the breach. A contract action actually accrues or arises when there is an existing right to sue for breach of the contract. Thorpe v. Schoenbrun, 202 Pa.Super. 375, 195 A.2d 870, 872 (Pa.Super.Ct.1963). Ordinarily, a cause of action for breach of contract accrues as soon as the promisor fails to do the thing contracted for, and the statute of limitations begins to run at such time. Waxman v. Citizens Nat. Trust & Savings Bank, 123 Cal.App. 2d 145, 266 P.2d 48 (Cal.1954). It is not material that the injury from the breach is not suffered until afterward, the commencement of the limitation being contemporaneous with the origin of the cause of action. Roberts v. Richard & Sons, Inc., 113 N.H. 154, 304 A.2d 364 (N.H.1973). However, if Howarth can prove that the bank had a contractual duty "to preserve and protect" his property, including a duty to maintain fire insurance, then the statute of limitations will not bar recovery. The bank could have fulfilled its duty either by acting as the insurer of the property or by contracting with an insurance company. In either case, appellant's property would have been protected. Thus, breach would not occur until How-arth's property suffered fire damage and additionally the bank refused to compensate appellant. Since the fire occurred on September 10, 1961, Howarth would not have sought compensation from the insurance companies or the bank until some time shortly after that date. Howarth commenced the present action on September 11, 1967. Thus, the six-year statute of limitations applicable to contract actions does not bar relief. IV Appellant argues that the statute of frauds should not bar relief because the contract is not within the scope of the statute, since it can be performed within one year; because the contract is excluded from the operation of the statute by the exception for contracts fully performed on one side; because the bank created a memorandum of a contractual relationship between the parties in the form of Mr. Linton's affidavit; and because the bank is estopped to plead the statute because of appellant's reliance on the representations of the bank. The superior court ruled that the statute of frauds barred relief because the contract consisted of an oral promise which was not performed within one year. A contract is not governed by the requirements of the statute of frauds unless it contains a negation of the right or capability of performance within the year. Renault v. L. N. Renault & Sons, Inc., 188 F.2d 317, 321-22 (3d Cir. 1951); Lloyd v. Kleefisch, 48 Cal.App.2d 408, 120 P.2d 97, 101 (Cal.1941). In order for the statute of frauds to apply, it must appear that the parties intended, when they made the contract, that it should not be performed within the year. Hopper v. Lennen & Mitchell, Inc., 146 F.2d 364, 366-67 (9th Cir. 1944); Tostevin v. Douglas, 160 Cal.App.2d 321, 325 P.2d 130, 134 (Cal.1958). If the contract, according to the intentions of the parties as shown by the terms of the contract, may be fully performed within a year from the time it is made, it is not within the statute, even though the time of its performance is uncertain, and may probably extend, be expected by the parties to extend, and in fact does extend, beyond the year. Warner v. Texas & Pacific Ry., 164 U.S. 418, 422, 17 S.Ct. 147, 41 L.Ed. 495 (1896); Cascaden v. Bell, 257 F. 926, 929 (9th Cir. 1919); Connelly v. Venus Foods, Inc., 345 P.2d 117, 120 (Cal.1959); Beckett v. Cosby, 73 Wash.2d 825, 440 P.2d 831, 832 (Wash.1968). Howarth and the bank did not expressly agree that the bank's promise to preserve and protect Howarth's interest would not be fulfilled within one year. And it was possible, if the purchaser of the property paid off its mortgage within one year, that appellee's duties under the contract would be discharged within one year. Since full performance was possible within one year, the statute of frauds does not bar relief. Reversed. . See Howarth v. Pfeifer, 443 P.2d 39 (Alaska 1968), and Howarth v. Pfeifer, 423 P.2d 680 (Alaska 1967), two previous decisions of this court which are related to the factual situation in this case. . Since this is an appeal from a summary judgment, we are accepting as true all of the allegations of the party against whom the motion was made — the appellant. See Hitzinzki v. Golden Valley Elec. Ass'n, Inc., 509 P. 2d 280, 283-84 (Alaska 1973); Braund, Inc. v. White, 486 P.2d 50, 53-54 (Alaska 1971). . AS 09.10.050 provides, in part: "No person may bring an action (1) upon a contract or liability, express or implied, . . . ; unless commenced within six years." . AS 09.25.010(a)(1) provides: "In the following cases and under the following conditions an agreement, promise, or undertaking is unenforceable unless it or some note or memorandum of it is in writing and subscribed by the party charged or by his agent: (1) an agreement that by its terms is not to be performed within a year from the making of it;" .Civil Rule 56(c) provides, in part: "There must also be served and filed with each motion a memorandum showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Braund, Inc. v. White, 486 P.2d 50, 54 (Alaska 1971). .Civil Rule 56(c) provides, in part: "The adverse party not later than two days prior to the hearing may serve opposing affidavits, a concise 'statement of genuine issues' setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, and any other memorandum in opposition to the motion." See Braund, Inc. v. White, 486 P.2d 50, 54 n. 5 (Alaska 1971). . Wilson v. Pollet, 416 P.2d 381, 383-84 (Alaska 1966); 6 Moore, Federal Practice § 56.15 [3] at 2337. . For the language of the relevant statute, AS 09.10.050, see note 2, supra. . For the language of the relevant statute, AS 09.25.010(a)(1), see note 3, supra. . AS 09.25.020(1) provides: "A contract, promise, or agreement which is subject to § 10 of this chapter, which does not satisfy the requirements of that section, but which is otherwise valid is enforceable if (1) there has been full performance on one side accepted by the other in accordance with the contract;"

10466562

Gradelle LEIGH, Appellant, v. Dana LUNDQUIST, Appellee

Leigh v. Lundquist

1975-09-26

No. 2378

492

498

540 P.2d 492

540

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:20:29.736753+00:00

CAP

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

Gradelle LEIGH, Appellant, v. Dana LUNDQUIST, Appellee.

Gradelle LEIGH, Appellant, v. Dana LUNDQUIST, Appellee. No. 2378. Supreme Court of Alaska. Sept. 26, 1975. David Shi.mek and Warren W. Matthews, Jr., Matthews, Dunn & Baily, Anchorage, for appellant. Irving S. Bertram, Hughes, Thorsness, Lowe, Gantz & Powell, Anchorage, for ap-pellee. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and BURKE, Justices.

3206

19373

OPINION BOOCHEVER, Justice. The primary issue confronting us on this appeal is whether the trial judge erred in refusing to give a requested instruction on comparative negligence. This case arose from a two-car collision which occurred in the City of Fairbanks at the intersection of Peger Road and Airport Access Road (hereinafter Access Road) on July 14, 1970. The plaintiff Ms. Gradelle Leigh brought an action for personal injuries allegedly caused by the negligence of the defendant Dana Lundquist. The jury returned a verdict in favor of the defendant, and judgment was duly entered upon the verdict. The trial judge refused to give a requested instruction on comparative negligence, and, over objection, gave an instruction that contributory negligence was a complete defense. In Kaatz v. State, 540 P.2d 1037, (Alaska, 1975), decided subsequent to the trial of this case, we adopted the doctrine of pure comparative negligence as the law of Alaska. Kaatz, however, is not necessarily dispositive of this appeal. First we must determine whether a jury question was presented. In order to do that, we must decide whether defendant's negligence, if any, proximately caused the injuries suffered by the plaintiff. If so, we must then decide whether the issue of comparative negligence was properly raised at the trial court level so as to be preserved for review. We answer both of those questions in the affirmative. I The jury's verdict was in favor of the defendant. Since it was a general verdict, there is no way to ascertain whether it was based on the jury's determination that Mr. Lundquist was not negligent, or in the alternative, that he was negligent but that Ms. Leigh's contributory negligence barred recovery. Only in this latter situation would the comparative negligence instruction have been mandated. Such a mandate is predicated upon the possibility of a jury verdict based on Mr. Lundquist's negligence. Mr. Lundquist contends that this court must examine the evidence in the light most favorable to him, and that, under this standard, there is no basis for a verdict of negligence on his part and, therefore, the jury's verdict in his favor can readily be sustained. Our task in determining whether or not a comparative negligence instruction should have been given is not the same as in meeting a challenge to a court or jury's finding of negligence. In that situation, we would indeed be compelled to view the evidence in the light most favorable to the party prevailing below in order to see whether it could sup port the challenged finding or verdict. Here, however, we are confronted with a challenge of a different nature, that is, to adverse rulings on instructions, and we must determine whether there was any evidence which, when viewed most favorably to Ms. Leigh, would have justified a jury finding of negligence on the part of Mr. Lundquist. Put another way, our task is to determine whether Lundquist would have been entitled to a directed verdict on the issue of his absence of negligence. Otherwise, the instruction as to comparative negligence should have been given, and the objection to the instruction on contributory negligence sustained. The test used to review a denial of a directed verdict is whether the evidence when reviewed in a light most favorable to the nonmoving or opposing party is such that reasonable men could not differ in their judgment. If the evidence allows for no diversity of opinion among reasonable men, then the directed verdict will be upheld. There would be little gained by an exhaustive analysis of the facts leading to the collision. A diagram of the scene of the accident depicting the position and direction traveled by the parties' vehicles as well as the location of the vehicles of the two eyewitnesses is attached as Appendix A. Suffice it to say that Lundquist proceeded along Peger Road through the Airport Way intersection and then into the closely adjacent separate Access Road intersection where his vehicle and that of Ms. Leigh collided. For the purposes of this appeal, we are not concerned with the alleged negligence of Ms. Leigh who was driving on the Access Road and entering the Peger Road intersection. It is elemental that in order for liability to be imposed in a negligence action, the plaintiff must establish a duty of due care owed him by the would-be defendant, a breach of that duty, and, finally, that the injury was proximately caused by the breach of duty. Generally speaking, the duty of due care or ordinary care is the duty to act with that amount of care which a reasonably prudent person would use under the same or similar circumstances. There are three possible ways in which Lundquist might have failed to exhibit ordinary care. First, he might have been exceeding the posted speed limit of SO mph at the time he entered the intersection. Second, although proceeding at a rate within the posted speed limit, he might have been driving unreasonably fast given the condition of the road (wet pavement). Third, he might have failed to reduce speed upon entering the intersection, or he might have entered the intersection just before or just after the yellow traffic signal turned red. With regard to the first two theories of negligence, there was testimony furnished by the witnesses from which the jury could have found that in proceeding through the first intersection immediately prior to the collision, Lundquist was exceeding the SO mph speed limit, or at least proceeding at an unreasonable rate. Immediately after the collision, Lundquist was heard to complain that he could have made it if it hadn't been for the plaintiff. Although the sun was shining at the time of the accident, the highway was wet, which has a bearing on the reasonableness of Lundquist's speed. The traffic regulations bearing on the third possible theory of Lundquist's negligence are 13 AAC 02.275(c) providing that a "driver shall . . . drive at an appropriate reduced speed when approaching or crossing an intersection . . . " and § 7.205(b)(1) of the City of Fairbanks Municipal Code specifying that [vjehicular traffic facing the [yellow signal] is thereby warned that the red . signal will be exhibited immediately thereafter and such vehicular traffic shall not enter or be crossing the intersection when the red signal is exhibited. The defendant concludes that the plaintiff was not a member of that class of persons the regulations were aimed at protecting. The plaintiff was not injured while in or attempting to enter or cross the intersection of Airport Way and Peger Road. Instead, Ms. Leigh was attempting to cross an entirely separate intersection controlled by a stop sign. Furthermore, the plaintiff did not even claim to be acting in reliance on the signal light in the other intersection. The defendant's contention, although ably argued, misconceives the general purpose of the traffic law he purports to be interpreting. The laws requiring stopping for red lights or slowing for passage through an intersection certainly are designed primarily to protect those others who may be present at the intersection at a given moment. Such traffic laws, however, are designed as well to protect all those people traveling in or near the intersection by car or by foot who foreseea-bly would be affected by unreasonable speed in passing through the intersection or disregard for the operation of a given traffic signal. It is therefore clear that Mr. Lundquist had a duty to act with the degree of care which a reasonably prudent person would use under the same or similar circumstances, and that such duty applied to one such as Ms. Leigh entering the adjacent intersection. Whether he in fact breached that duty is a question for the jury to resolve. Counsel further presents an argument as to whether the collision was proximately caused by such breach of duty. First, Lundquist contends that even if the traffic light was red, an "act or an omission [cannot be] regarded as a cause of an event if the particular event would have occurred without it." He alleges that Ms. Leigh would have proceeded into the intersection regardless of the color of the traffic signal at the other intersection, and therefore, the plaintiff's negligence was the sole cause of the accident. He insists that the color of the light could not have been the cause of the accident since it could not be said that the accident would not have occurred if the light had been green. While this last statement may be a truism, the remainder of the defendant's argument is sophistic. No one has argued that the color of the light caused the accident. Rather, we must focus on Lundquist's actions in allegedly negligently failing to observe that signal. Obviously, if the light had been red and Lundquist had stopped, the collision would not have occurred and therefore any negligence on the defendant's part could readily be found causal. The second part of Lundquist's proximate cause analysis is somewhat more provocative. He contends that, assuming the traffic light was in his favor or that he non-negligently passed through the intersection even though the light may have turned red at some time while he was within it, any possible negligence with respect to the speed of his vehicle was not the proximate cause of the accident since, even at the allegedly reasonable speed of 30 mph, he would have been unable to avoid the collision with Ms. Leigh's car. This statement relies on J. Baerwald's Traffic Engineering Handbook (3rd ed. 1965) wherein it states that even at 30 mph, a driver would require 159 feet to react and to bring his car to a stop on wet pavement. At most, Lundquist had only a distance of 110 feet from the middle of the Airport Way-Peger Road intersection to the point of impact. Therefore, the defendant contends, since the accident would have occurred whether or not the defendant had been going faster than the conditions warranted, the fact that he might have been exceeding a prudent speed would have no bearing on the proximate cause of the accident. The problem with this argument is that it would require this court to make certain major incursions into the province of the jury. It would require this court to find that 30 mph was a reasonable speed under the circumstances and that, even at such a reduced speed, it would have been impossible for Lundquist to have employed effective avoidance tactics. We also would have to usurp the jury's function in determining the distance at which Mr. Lund-quist could first have observed that Ms. Leigh's vehicle was proceeding into the intersection. Furthermore, aside from its mention in the appellee's brief, we can find no reference to Baerwald's manual in the record below, nor is there any other evidence relating to reaction times and braking distances under various road conditions contained in the record before this court on this appeal. In any event, the defendant's position, is grounded on the assumption that this crossing of the intersection was non-negligent except perhaps as to his speed. Insofar as this too constitutes a finding of fact, we are unable to accept even that basic premise. We believe that the issue of proximate causation presented in the instant case involves close factual determinations to be resolved by the finder of fact. In conclusion, we hold that the defendant did owe the plaintiff a duty of due care, that there was evidence from which a jury could have found that he breached that duty, and that there was evidence from which the jury could have found that the defendant's negligence proximately caused the injuries suffered by the plaintiff. Therefore, the issue of the adoption of a comparative negligence standard, if properly raised, must be confronted. II The issue of whether the superior court should apply a standard of comparative negligence rather than permit a defense of contributory negligence was first raised in the proceedings below at the time the plaintiff submitted her proposed jury instructions, more.specifically, by means of requested Instructions Nos. 2 and 3. Pursuant to the pre-trial order of June 8, 1973, the parties were required to submit their proposed instructions "prior to the trial". The plaintiff complied with this order. In the Kaatz case, the plaintiff first presented the issue of comparative negligence to the trial court as a motion to amend and supplement the court's findings of fact and conclusions of law. It was urged, as here, that the issue was not presented below in a timely manner, and therefore was not properly before this court on appeal. While Kaatz was not a jury case, its holding that the issue was properly raised controls here where the proposed instructions on comparative negligence were presented prior to trial. In view of the long standing precedent in Alaska whereby contributory negligence was held to be a complete defense to a negligence action, counsel could assume that any change would probably have to await action by the supreme court. Little would be likely to be accomplished by raising the issue earlier by means of motion accompanied by thorough briefing. Nor do we believe that earlier presentations of the issue would have so affected settlement possibilities for us to consider the issue to be waived when it was directly presented to the court prior to trial. Moreover, counsel for Ms. Leigh further preserved the issue by properly objecting to the court's instruction that the plaintiff's contributory negligence would be a complete defense. The issue was subsequently set forth in the statement of points on appeal pursuant to Alaska R.Civ.P. 9(e). We hold that the issue of comparative negligence is properly before us. In Kaatz, we held that the new rule pertaining to comparative negligence would apply to any case pending on appeal in which the application of the comparative negligence rules was requested or asserted in the trial court and in which the request or assertion was preserved as a ground for appeal. This appeal comes squarely within that holding and, accordingly, the case is remanded for a retrial under the principle of comparative negligence, Remanded. appendix A . City of Fairbanks v. Smith, 525 P.2d 1095, 1096 (Alaska 1974); Graham v. Rockman, 504 P.2d 1351, 1354 (Alaska 1972); National Bank of Alaska v. McHugh, 416 P.2d 239, 242 (Alaska 1966); Chirikoff Island Cattle Corp. v. Robinette, 372 P.2d 791, 794 (Alaska 1962). . An analogous situation is discussed in Cummins v. King & Sons, 453 P.2d 465, 466-67 (Alaska 1969), wherein Justice Dimond, speaking for the court, held that an instruction on contributory negligence was erroneous, stating: But in order to justify submitting to the jury the question of whether the plaintiff himself was negligent, there must be evidence of such negligence. There must be facts from which one could reasonably infer that such negligence existed. As to the quantity of evidence needed, the test is whether the facts and resulting inferences are such that reasonable minds could justifiably have different views on the question of whether the plaintiff had been negligent. If they could, then it would be proper to submit that issue to the jury for its determination under appropriate instructions. If they could not — if reasonable minds could reach only the conclusion that the plaintiff was not negligent — then submitting the issue to the jury would not be justified. (footnote omitted) See Groseth v. Ness, 421 P.2d 624, 629 (Alaska 1966). . Holiday Inns of America, Inc. v. Peck, 520 P.2d 87 (Alaska 1974); Breitkreutz v. Baker, 514 P.2d 17 (Alaska 1973). See National Bank of Alaska v. McHugh, 416 P.2d 239 (Alaska 1966) (same test utilized in reviewing trial court's refusal to grant judgment n. o. v.). These cases indicate that whenever as here a trial judge's decision has the effect of removing a question such as comparative negligence from the jury thereby eclipsing its function as a fact finder, the same stringent standard of review will be appropriate. . Larman v. Kodiak Electric Ass'n, 514 P.2d 1275, 1279 (Alaska 1973); Ferrell v. Baxter, 484 P.2d 250, 259 (Alaska 1971). . Patterson v. Cushman, 394 P.2d 657, 662-63 (Alaska 1964); Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12 (1955); Stewart v. Smith, 68 Ariz. 91, 200 P.2d 353 (1948); Keller v. Markley, 50 Cal.App.2d 155, 122 P.2d 614 (1942). . As to the effect of the violation of such regulations, see Breitkreutz v. Baker, 514 P.2d 17 (Alaska 1973) ; Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971). . See generally Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). .W. Prosser, Law of Torts 238 (4th ed. 1971); Rouleau v. Blotner, 84 N.H. 539, 152 A. 916 (1931) (negligence to be actionable must be causal). . See Dombeck v. Chicago, Milwaukee, St. Paul Pac. R.R. Co., 24 Wis.2d 420, 129 N.W.2d 185, 193 (1964), where the Wisconsin Supreme Court held that, it was not error for the trial court to refuse to submit the question of the train's speed to the jury since there was no evidence in the record to indicate that the train could have avoided the collision with the automobile whether the train had been traveling the permissible 40 mph or speeding at 60 mph. See also Zahn v. Arbelo, 72 Wash.2d 636, 434 P.2d 570 (1967), where the Supreme Court of Washington upheld the trial judge's decision not to present the issue of the plaintiff's contributory negligence (inattentiveness) to the jury since, even assuming proper attention by the plaintiff, he would not have noticed the defendant's action (failure to yield right-of-way) in time to have avoided the collision. . See Roberts v. Fisher, 169 Colo. 288, 455 P.2d 871 (1969); Rosevear v. Rees, 77 Idaho 270, 291 P.2d 856 (1955). . See Larman v. Kodiak Electric Ass'n, 514 P.2d 1275, 1281 (Alaska 1973). . The defendant refers the court to our decision in Harris v. Barrett & Lesh, Inc., 426 P.2d 331, 334-35 (Alaska 1967). In that case, the appellant's brief before this court was completely inadequate on the issue of comparative negligence, and counsel in fact did not expressly urge the adoption of such a new standard until oral argument of the appeal. There we observed: We are not inclined to rule upon such a significant policy matter when it has been so casually treated by appellant's counsel. The Harris case, however, involved briefing before an appellate court. In the instant case, both parties have presented extensive briefs on the issue of comparative negligence which constitute excellent treatments of the opposing sides of the question and a completely adequate adversarial basis from which we could make our decision. This court in Harris did not purport to set up rigid briefing standards applicable at the trial court level. Therefore, the lack of adequate briefing of a question below,' in itself, does not necessarily affect the propriety of this court's entertaining the question on review, and our holding in Hams cannot be deemed controlling here.

10409671

George C. REED, Appellant, v. MUNICIPALITY OF ANCHORAGE, Plumbers and Steamfitters, Local 367, Appellees

Reed v. Municipality of Anchorage

1987-09-04

No. S-1648

1181

1187

741 P.2d 1181

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

George C. REED, Appellant, v. MUNICIPALITY OF ANCHORAGE, Plumbers and Steamfitters, Local 367, Appellees.

George C. REED, Appellant, v. MUNICIPALITY OF ANCHORAGE, Plumbers and Steamfitters, Local 367, Appellees. No. S-1648. Supreme Court of Alaska. Sept. 4, 1987. Richard B. Collins, Anchorage, for appellant. Philip Matricardi, Asst. Mun. Atty., Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2969

18325

OPINION MATTHEWS, Justice. George Reed appeals from the superior court's dismissal of his complaint against the Municipality of Anchorage, in which he asserted a wage claim and a wrongful ter mination claim. The Municipality moved to dismiss the complaint on the grounds that the statute of limitations barred Reed's claims, and that Reed failed to exhaust his administrative remedies. The superior court granted the motion and dismissed his claims. I. FACTS AND PROCEEDINGS On August 24, 1981, Reed was dispatched by the Plumbers and Steamfitters Union, Local 367, to the Anchorage Waste-water Treatment Plant as a utilityman at a wage scale of $13.20 per hour. The Municipality immediately put him to work as an Operator I, which carried a wage rate of $14.79 per hour. The Municipality, however, continued to pay him at the utility-man rate of $13.20. In November 1981, Reed was promoted to an Operator II, which carried a wage rate of $15.58 per hour; however, Reed was only paid at the Operator I rate of $14.79. In early March 1982, Reed lodged a job safety complaint with the Alaska Department of Labor and the Anchorage Mayor's office, which resulted in a plant inspection and citation. Immediately thereafter, Reed was reassigned to the day shift, with weekends off. On March 7, Reed was granted medical leave pursuant to Article XIV, section 14.10 of the union's collective bargaining agreement with the Municipality. The leave, supported by a doctor's notice, lasted until March 27,1982 which was a Saturday. Reed did not report to work on Monday, March 29, or on March 30 or 31, apparently under the belief that his doctor had not released him to return to work. The Municipality terminated Reed on March 31, 1982 for being absent three consecutive working days without approval, citing Article IX of the collective bargaining agreement. Although Reed became aware of his termination through a call to his supervisor on April 5, he did not receive his formal notice of termination until April 30,1982. The union refused to file a grievance on Reed's behalf, so Reed immediately filed his own grievance. Two hearings by the Municipality were subsequently held on April 23 and 29. On September 30, 1982, the Alaska Department of Labor filed a complaint against the Municipality charging that the Municipality unlawfully discharged Reed. On April 2,1984, Reed filed his complaint in the present action. He filed an amended complaint on April 9. The state's complaint against the Municipality was dismissed by stipulation in August 1984; the stipulation specifically stated that the dismissal of that complaint was not to affect Reed's own civil action against the Municipality. The Municipality made a motion to dismiss Reed's action on June 2, 1985, which the trial court granted on February 24, 1986. Reed made a motion pursuant to Civil Rule 78 for a clarification of judgment, specifically requesting findings of fact and conclusions of law. This was denied. Reed timely appeals. II. DISCUSSION A. Standard of Review The Municipality made its motion to dismiss Reed's complaint citing Alaska R.Civ.P. 12, specifically arguing that the two-year statute of limitations and the doctrine of exhaustion of administrative remedies barred Reed's causes of action. The superior court granted the motion and dismissed the complaint without explanation. On appeal, the Municipality now argues for the first time that the superior court could properly have dismissed the complaint on the additional grounds of failure to prosecute and failure to state a claim on which relief could be granted. Initially we address the procedural problem arising from the superior court's failure to state whether it considered or excluded certain documents outside the pleadings which both parties submitted in support of their respective positions on the motion to dismiss. The court apparently treated the dismissal motion as made pursuant to Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Civil Rule 12(b) requires the trial court affirmatively to exclude outside materials if it does not consider the conversion of a Rule 12(b)(6) motion to one for summary judgment to be desirable. The record shows that matters outside the pleadings were presented to the superior court and not excluded by the court. In Martin v. Mears, 602 P.2d 421, 426 (Alaska 1979), we held that "all trial courts must expressly state whether they have in fact excluded or considered such materials in reaching their decisions." Here, as in Martin, because the court did not exclude the outside materials, it was under "a mandatory duty" to treat the Municipality's motion as one for summary judgment and to dispose of it as provided in Rule 56 after giving the parties a reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Id. at 426. Thus, the court erred in failing to adhere to the exclusion or conversion requirements of Civil Rule 12(b). This error does not of itself require reversal. In Martin we further held that if the superior court fails to treat a motion to dismiss for failure to state a claim on which relief can be granted as a motion for summary judgment when matters outside the pleadings have been presented and not excluded, we may reverse and remand for proper consideration, or we may review the superior court's decision as if the motion for dismissal had been granted after exclusion of outside materials, or as if summary judgment had been granted after conversion of the motion to dismiss into one for summary judgment. Id. at 427. Motions to dismiss for failure to state a claim are viewed with disfavor and should rarely be granted. Knight v. American Guard & Alert, Inc., 714 P.2d 788, 791 (Alaska 1986). Courts are obliged to construe complaints liberally and give the complaint the benefit of the doubt. Id. In determining the sufficiency of the stated claim, it is enough that the complaint set forth allegations of fact consistent with some enforceable cause of action on any possible theory. Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983); Knight, 714 P.2d at 791. The standard of review for summary judgment is to determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment on the law applicable to the established facts. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). When a trial court grants summary judgment without stating its reasons, it is presumed that the court ruled in the movant's favor on all of the grounds stated. Accordingly, the summary judgment should be reversed only if no ground asserted supports the trial court's decision. State v. Appleton & Cox of California, Inc., 703 P.2d 413, 414 (Alaska 1985). Based upon our review of this appeal, we have concluded that whether we review the superior court's dismissal of Reed's complaint under the standard applicable to dismissal or that applicable to grants of summary judgment, reversible error exists. B. Statute of Limitations In its motion to dismiss, the Municipality argued that both counts of Reed's complaint alleged employment discrimination, and that the actions complained of all took place more than two years prior to the filing of the complaint. The Municipality asserted that the actions complained of in Count I, i.e., Reed's failure to be paid at a rate commensurate with the work he was doing, arose in October 1981. The Municipality also asserted that the action complained of in Count II, i.e., his termination, took place on March 31, 1982. The Municipality then incorrectly argued that Reed's original complaint was filed on April 10, 1984, and that the two-year statute of limitations for actions based upon a statute, Alaska Statute 09.10.070(3), barred his claims. In fact, the original complaint was filed on April 2, 1984, and the amended complaint was filed on April 9. Reed's complaint against the Municipality is set forth in two counts. In Count I, Reed alleges the facts concerning his dispatch to the treatment plant, his assignment as an Operator I with wages paid at the utilityman level, and his promotion to Operator II with wages paid at the Operator I level. He then alleges: VII. Plaintiff was underpaid then in an amount as will be shown by proof at time of trial. VIII. Since plaintiffs termination, defendant has failed, refused and neglected to pay plaintiff his just wages, which is in violation of AS 23.05.140(b). IX. Pursuant to AS 23.05.140(b) defendant is indebted to plaintiff in additional sums to be determined by proof at time of trial. We do not believe that Reed's cause of action is strictly or solely an action for liability upon a statute. Rather, we construe Reed's cause of action in Count I to allege a breach of the collective bargaining agreement. The collective bargaining agreement was attached to Reed's complaint. The agreement contains the specified wage rates at which employees working as utilityman, Operator I and II are required to be paid. Both parties agree that they are bound by the collective bargaining agreement. The Municipality's failure to pay the specified wage would be a violation of the collective bargaining agreement. Thus, Reed's complaint alleging that the Municipality failed to pay these rates may be construed to state a cause of action for breach of the collective bargaining agreement. As such, it is controlled by the six-year statute of limitations for contract actions, AS 09.10.050, and was timely filed. Therefore, the superior court erred in dismissing Count I based upon the running of the two-year statute of limitations. We note, however, that even if Count I is construed to be a claim for liability upon a statute, it was timely filed within the two-year period. Reed alleged that the Municipality violated AS 23.05.-140(b), which provides that "[i]f the employment is terminated, regardless of the cause of termination, all wages, salaries or other compensation for labor or services becomes due immediately and shall be paid within three working days after the termination-" Alaska Statute 09.10.070(3) provides for a two-year statute of limitations "upon a liability created by statute." Reed was terminated on Wednesday, March 31, 1982. Under AS 23.05.140(b), the Municipality had until Monday, April 5, 1982, three working days after it terminated Reed, to pay him his due compensation. If the Municipality failed to do so, it became liable upon the statute, and Reed would have two years — until April 5, 1984 —to bring suit on his claim of violation of AS 23.05.140(b). Reed filed his complaint on April 2, 1984. Therefore, that part of Count I alleging that the Municipality violated AS 23.05.140(b) was timely filed, and Reed's cause of action under Count I should not have been dismissed under a two-year statute of limitations defense. Count II contains an allegation that Reed was wrongfully and discriminatorily discharged in retaliation for having complained to the Department of Labor and the Mayor's office. On appeal, the Municipality correctly concedes that Reed's Count II wrongful termination claim was timely filed. Because Reed was terminated on March 31,1982, under a two-year statute of limitations, he would have until March 31, 1984 to file his suit for wrongful discharge. March 31, 1984 fell upon a Saturday, however, and under AS 01.10.080, Civil Rule 6(a), and David v. Sturm, Ruger & Co., 557 P.2d 1133, 1134-35 (Alaska 1976), Reed's filing of his action on the following Monday, April 2, 1984, was timely. To summarize, both Count I and Count II of Reed's complaint were timely filed within the appropriate time periods. Therefore, the superior court erred in granting the Municipality's motion to dismiss upon its statute of limitations arguments. C. Exhaustion of Administrative Remedies The Municipality argues that even if the superior court erred in dismissing Count I as barred by the statute of limitations, the superior court's dismissal of that count can be affirmed because Reed failed to exhaust his administrative remedies. The Munici pality does not argue that Reed failed to exhaust his administrative remedies as to Count II, the wrongful discharge count. Indeed, the Municipality could not make that argument in good faith, for Reed in fact pursued his administrative remedy by filing a grievance which resulted in a complaint by the State Department of Labor against the Municipality charging the Municipality with wrongfully discharging Reed. The Municipality's entire argument that Reed was required first to exhaust his administrative remedies with respect to his Count I wage claim is as follows: Alternatively it is undisputed that George Reed did not seek administrative relief from the Alaska Department of Labor under AS 23.05.190. He was not entitled to seek judicial relief until the available administrative remedies had been exhausted. Eidelson v. Archer, 645 P.2d 171, 176 (Alaska 1982). Neither of the cited authorities set forth any administrative remedy which wage claimants are required to exhaust. Alaska Statute 23.05.190 provides for enforcement of wage claims: The department [of labor] shall (1) enforce this chapter; (2) investigate possible violations of this chapter; (3) institute actions for penalties provided in this chapter. Nothing in this section or in any of the remainder of AS 23.05 expressly provides that an employee has or must exhaust an administrative remedy. Nor is there any particular administrative remedy that suggests itself as an exclusive or necessary-threshold procedure which an employee must first pursue. Alaska Statute 23.05.-200(a) provides that "[t]he department may hold hearings to investígate a claim for wages. It may cooperate with an employee in the enforcement of a claim against the employer when it considers the claim just and valid." (Emphasis added.) Likewise, AS 23.05.210 provides that "[t]he attorney general may prosecute a civil case arising under this chapter which is referred to the attorney general by the depart-ment_" (Emphasis added.) Alaska Statute 23.05.220 provides for assignment of wage claims to the Department of Labor. Alaska Statute 23.05.230 provides that "[t]he department may prosecute an action for the collection of a claim...." The Municipality's citation to Eidelson v. Archer is likewise to no avail. In Eidel-son, we held that the exhaustion of administrative remedies doctrine was applicable to a physician's challenge of his suspension and termination from a private hospital, for the physician failed to pursue the administrative remedies provided in the hospital's bylaws. 645 P.2d at 176-77. In Casey v. City of Fairbanks, 670 P.2d 1133, 1136 (Alaska 1983), we held that employees must first exhaust their contractual or administrative remedies, or show that they were excused from doing so, before pursuing direct judicial action against their employer. We further held, on the facts of that wrongful discharge case, that the employee had made a good faith effort to pursue his grievance. In this case, the collective bargaining agreement between the Municipality and the union does contain grievance procedures, but these procedures do not apply to disputes which the union will not prosecute on behalf of an aggrieved employee. Nevertheless, it is noteworthy that upon the union's refusal to file a grievance on Reed's behalf, he instituted a grievance seeking to resolve his dispute administratively. Thus, even if Reed had a duty to exhaust his administrative remedies, he made a good faith effort to do so. We hold that the Municipality's argument that Reed had an administrative remedy which he was required and failed to pursue is without merit. Therefore, the superior court erred if it based its dismissal of Reed's complaint upon the grounds that he failed to exhaust his administrative remedies as to Counts I or II. D. Failure to Prosecute Wrongful Termination Claim and Failure to State a Cause of Action On appeal, the Municipality argues for the first time that the superior court's decision dismissing Count II of Reed's complaint may be upheld on the grounds that Reed failed to state a cause of action and that he failed to timely prosecute his wrongful termination claim. Civil Rule 41(e) provides that before a trial court may dismiss an action for want of prosecution, it must first either hold a call of calendar or send notice to the parties to show cause in writing why a dismissal of the action should not be ordered. As the court in this case conducted neither of the prerequisite procedures, we cannot affirm its dismissal on this basis. The Municipality's argument that Reed's complaint failed to state a claim because it contained an "admission" that he was unavailable for work even after the time permitted for medical leave under the collective bargaining agreement had expired cannot be resolved on either a Rule 12(b)(6) proceeding or on a motion for summary judgment. Reed's complaint alleges a cause of action, and there are unresolved questions of fact concerning whether the collective bargaining agreement's provision applies, whether Reed could have been excused, or whether there are any other grounds which might have supported Reed's absence. Moreover, because the Municipality did not make this particular argument in its motion to dismiss, Reed did not have an opportunity to respond to the Municipality's assertions of fact. III. CONCLUSION We conclude that neither the statute of limitations nor the doctrine of exhaustion of administrative remedies bars Reed's wage claim or wrongful termination claim. The Municipality's arguments that Count II fails to state a claim for which relief may be granted, and that this count should be dismissed for failure to prosecute, are without merit. Therefore, the superior court's dismissal of Reed's complaint is vacated and the case is remanded for trial. VACATED and REMANDED.

10409909

James L. HANCOCK, Appellant, v. STATE of Alaska, Appellee

Hancock v. State

1987-09-04

No. A-1811

1210

1215

741 P.2d 1210

741

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

James L. HANCOCK, Appellant, v. STATE of Alaska, Appellee.

James L. HANCOCK, Appellant, v. STATE of Alaska, Appellee. No. A-1811. Court of Appeals of Alaska. Sept. 4, 1987. Robert M. Beconovich, Fairbanks, for appellant. James L. Hancock, pro se. Kenneth J. Goldman, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2864

18191

OPINION SINGLETON, Judge. James L. Hancock was convicted of four counts of sexual assault in the first degree, a class A felony. Former AS 11.41.-410(a)(1) and (b). Hancock's victim was T.T., the daughter of a woman, L.B., with whom Hancock had lived for a number of years. The assaults charged in the indictment occurred between December 1981 and May 1982. The maximum penalty for first-degree sexual assault was twenty years' imprisonment. Former AS 12.55.125(c)(1). At that time first offenders were not subject to a presumptive term; Hancock was sentenced as a first-felony offender. Superior Court Judge Warren W. Taylor sentenced Hancock to four maximum consecutive twenty-year sentences, constituting a composite sentence of eighty years' imprisonment. Hancock appealed his conviction and the resulting sentence. We affirmed Hancock's conviction but found the record inadequate to resolve the sentencing issue. We therefore vacated his sentence and remanded the case for resentencing. We advised the sentencing judge to make findings of fact explaining the aggravating factors found, based on evidence; we further instructed the court to make conclusions of law applying the Chaney criteria to those findings, and to recognize that this court has approved total sentences in excess of forty years only where the defendant was convicted of multiple crimes and has a felony record of violent crimes. Hancock v. State, 706 P.2d 1164, 1171, 1173 (Alaska App.1985). Judge Taylor retired while this case was on appeal. On remand, it was assigned to Superior Court Judge Gerald J. Van Hoomissen. Under the circumstances, Judge Van Hoomissen was free to exercise his independent judgment in resentencing, but was obligated to follow this court's mandate. See Kramer v. State, 735 P.2d 754 (Alaska App.1987). After hearing further evidence from the parties, Judge Van Hoomissen reimposed the four consecutive maximum sentences. Hancock appeals, contending that the sentence imposed on remand is excessive. We agree and remand for resentencing to a period not to exceed forty years' imprisonment. In our prior Hancock opinion, we summarized the facts, then in the record, relevant to Hancock's sentencing, as follows: Hancock presents a particularly difficult case. At the time he was sentenced, Hancock was thirty-five years old. Hancock is a high school graduate and has college credits in engineering and mathematics. Prior to his arrest, Hancock had been employed for between one and two years as a service manager for a company which manufactures water pumps. Hancock has a criminal record consisting of a number of property offenses committed between 1967 and 1971, for which he apparently served some time in prison, and two offenses involving violence against others committed in 1977. Hancock has no record from 1977 until the conviction which is the subject of this appeal. Hancock lived with L.B. and her five children for a period of about five years [spanning the period 1977 until 1982] before his arrest. The sentencing record establishes a continuous course of sexual abuse of T.T. and some evidence of sexual abuse of her siblings. In addition, Hancock has been violent with all of the children and their mother. Hancock denies that he sexually assaulted T.T. and exhibits little remorse. Most disturbing is the evidence that he penetrated T.T.'s vagina with an object which became implanted requiring surgery for its removal. This episode caused T.T. serious physical injury and psychological damage. 706 P.2d at 1172. We did not rule on Hancock's sentence appeal at that time, believing that the record was inadequate for that purpose. We remanded, directing that the trial court do a number of things. First, the court was to obtain an updated psychological or psychiatric evaluation of Hancock, unless Hancock refused to be evaluated. Second, we directed that the trial court consider an overall sentence in light of the guidelines we expressed in State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). Andrews had been decided after Hancock was sentenced. We concluded: [I]n resentencing Hancock the trial court should recognize that we have only approved total sentences of forty years or more for persons convicted of multiple crimes warranting consecutive sentences who also have a felony record for crimes of violence. Wortham v. State, 689 P.2d 1133, 1143-45 (Alaska App.1984) (five prior felony convictions); Larson v. State, 688 P.2d 592 (Alaska App.1984) (two prior felony convictions); but cf Nix v. State, 653 P.2d 1093,1101 (Alaska App.1982) (extensive felony record for nonviolent crimes but present conviction involved premeditated violent sexual assaults against three separate victims). Hancock would not seem to fit within this category of offenders. In fact, he would not seem to fall within the class of offenders for which we have approved total consecutive sentences of thirty years. See, e.g., Tookak v. State, 648 P.2d 1018, 1023-24 (Alaska App.1982) (defendant convicted of rape and kidnapping had a felony record for non-violent crimes and misdemeanor convictions for assault-related offenses). If the total sentence on remand exceeds thirty years, the trial court should clearly indicate why it views Hancock's case as more serious than Wortham, Larson, Nix, and Tookak, in light of the seriousness of their respective conduct and their respec tive past proven criminal records. AS 12.55.005. 706 P.2d at 1173. On remand, Judge Van Hoomissen held an evidentiary hearing to receive additional evidence regarding Hancock. He reviewed a psychiatric evaluation by John K. Bell-ville, M.D., of Fairbanks. Dr. Bellville summarized his conclusions as follows: Mr. Hancock is a 38-year-old man who is accused of sexual assault, whose thought processes are fluent and organized. He has responsed [sic] to the structure of the prison environment, with both physical and attitudinal changes. His insight, with regard to the behavior with which he is charged, and that to which he admits, with respect to sexually molesting and thinking about sexual [sic] molesting children, is very poor. In response to the questions posed by Your Honor, it is my opinion that: 1. The defendant, on or about December, 1981 through May, 1982, had substantial capacity to appreciate the wrongfulness of the act of sexual assault in the first degree. I feel at that time he was unable to conform his conduct to the requirements of the law, and that should he again find himself in a similar situation, it is very likely that his conduct would repeat itself. 2. On the basis of mental status examination, the patient is not otherwise currently mentally ill, though his history supports the diagnoses of: 1) Alcohol Dependence, continuous; 2) Cannabis Dependence and; 3) Intermittent Explosive Disorder. 3. I do not feel the defendant is a danger to himself, but that he poses a threat to children if placed in a situation where the opportunity for sexual molestation presents itself. 4. I feel the defendant's diagnosis is: 1) Pedophilia; 2) Marijuana and Cannabis Dependence, currently in remission and; 3) Intermittent Explosive Disorder. His prognosis, with respect to the pedophilia, is very poor as this is considered one of the disease classes least responsive to treatment. With respect to the alcohol and cannabis abuse, his prognosis is moderate, provided he obtain drug and alcohol treatment in an ongoing supportive environment. His prognosis, with respect to the Intermittent Explosive Disorder, depends on the level of external structure Mr. Hancock can be provided with, as persons with this diagnosis generally lack the internal controls necessary to constructively redirect strong emotions such as anger. Dr. Bellville also noted that Hancock consistently maintained his innocence regarding the charges. Dr. Boy Collier, a clinical psychologist, testified on Hancock's behalf at the resen-tencing. Dr. Collier indicated that he had been treating Hancock in the institution and felt that Hancock was trying to come to grips with his problems. Dr. Collier disagreed with Dr. Bellville's conclusion that Hancock was a pedophile. Dr. Collier reasoned that while Hancock was attracted to young children, he was also attracted to older females and that pedophilia, as a diagnosis, was limited to those who were exclusively attracted to children. The state presented the testimony of T.T. and two of her sisters. All testified under oath to a continuous pattern of sexual abuse between themselves and Hancock during the approximate five years they were under his control. It is unnecessary to repeat the discussion contained in our earlier Hancock decision. Suffice it to say that Hancock's background, his prior convictions, and his conduct with regard to his victim and her sisters, place him among the more serious offenders committing aggravated offenses. Consequently, a trial court would not have been clearly mistaken in imposing a total sentence in the range of ten to fifteen years. See, e.g., Andrews, 707 P.2d at 913; Polly v. State, 706 P.2d 700, 702 (Alaska App.1985). The difficult question posed by this appeal and its predecessor is whether Hancock can legitimately be sentenced to a period substantially in excess of the fifteen-year benchmark for aggravated of fenses. Such a sentence requires a finding that Hancock cannot be rehabilitated or deterred within a lesser period of time. See, e.g., Larson v. State, 688 P.2d 592, 599 (Alaska App.1984). In order to make the determination that a defendant requires a period in excess of fifteen years for deterrence and rehabilitation, it is imperative that the trial court compare his background, experience and offenses with those of others sentenced to extended terms. See AS 12.55.-005; see, e.g., Pears v. State, 698 P.2d 1198, 1202 (Alaska 1985); Page v. State, 657 P.2d 850, 854-55 (Alaska App.1983). In making this determination, eligibility for parole must be disregarded and it must be assumed that the defendant will serve any period of incarceration to which he is sentenced. Kelly v. State, 622 P.2d 432, 436-38 (Alaska 1981); Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980). The state concedes that Judge Van Hoomissen did not follow our mandate in this case and evaluate Hancock's background and offense in light of other cases in which extended terms were approved or disapproved. Nevertheless, the state contends that a comparison of Hancock's conduct, offenses and criminal background with those of other offenders, warrants the sentence imposed. Judge Van Hoomissen's failure to abide by our mandate in this case is troublesome. See Preston v. State, 634 P.2d 550 (Alaska 1981). We are also troubled by his comment during the course of his sentencing remarks that under current law Hancock would be subject to a sentence of up to ninety-nine years for one of the offenses. The supreme court has suggested that where a trial court is in error regarding the applicable maximum penalties, a harmless error analysis is inappropriate and a remand for resentencing is required. Deal v. State, 587 P.2d 740, 741 (Alaska 1978). Nevertheless, we are satisfied that we should address the sentencing issues at this time. While Judge Van Hoomissen apparently thought that the maximum sentence under current law was ninety-nine years, he understood that Hancock was convicted under prior law and that the maximum penalty was twenty years in prison. Further, and more importantly, Judge Van Hoomissen did concentrate on the Chaney criteria. See State v. Chaney, 477 P.2d 441 (Alaska 1970). He also found that Hancock's isolation was necessary to protect the public. We agree with Judge Van Hoomis-sen and Judge Taylor that Hancock is a particularly serious offender. His history of assaultive conduct verifies the psychiatrist's diagnosis of explosive temper and supports an inference that he is extremely dangerous to others. Hancock's continual sexual abuse of T.T. and her two sisters during a five-year period bears out Dr. Bellville's conclusion that Hancock has a strong sexual interest in children. While Dr. Collier may be correct that this interest is not exclusive, it nonetheless warrants a conclusion that Hancock presents a serious risk to children. Finally, the substantial physical violence visited on T.T., her sisters, and her mother, coupled with Hancock's prior convictions for which he served a substantial period of incarceration, serve to differentiate Hancock's case from those of other child abusers whose sentences we have reviewed. See, e.g., Dymenstein v. State, 720 P.2d 42 (Alaska App.1986) (eighteen-year sentence affirmed); Lewis v. State, 706 P.2d 715, 716-17 (Alaska App. 1985) (composite sentence of forty-six years with fifteen years suspended, reduced to twenty-five years with five years suspended; defendant, a forty-five-year-old scoutmaster had sexually molested up to thirty boys over a period of approximately four years); Polly v. State, 706 P.2d 700 (Alaska App.1985) (sentence of forty years with twenty years suspended reduced to fifteen years; defendant had engaged in repeated sexual abuse of his stepdaughters during a six-year period); Seymore v. State, 655 P.2d 786 (Alaska App.1982) (twenty-year sentence affirmed); Qualle v. State, 652 P.2d 481 (Alaska App.1982) (consecutive sentence of thirty years and ten years reduced to a twenty-one year sentence). Hancock's history of assaultive behavior with the victim, her sisters, and her mother serves to differentiate his case from Hintz and Tookak. See Hintz v. State, 627 P.2d 207, 210-11 (Alaska 1981); Tookak v. State, 648 P.2d 1018, 1023-24 (Alaska App. 1982). We are particularly concerned that Hancock's sexual abuse of T.T. and her sisters was discovered in Florida, that charges were pending, that Hancock, the girls and their mother fled the state, and that Hancock thereafter resumed sexually abusing the girls. On balance, we are satisfied that Hancock's offense and background, while in some respects distinguishable, place him in the category with Nix. See Nix v. State, 653 P.2d 1093, 1100-01 (Alaska App.1982). Under the circumstances, a sentence of up to forty years' imprisonment would not be clearly mistaken; a sentence in excess of forty years would be clearly mistaken. The sentence of the superior court is VACATED and this case REMANDED for resentencing to a term not to exceed forty years' imprisonment. . The applicable statutes have been amended. The crime for which Hancock was convicted is now an unclassified felony with a maximum term of thirty years' incarceration. Significantly, the legislature now prescribes an eight-year presumptive term for first offenders (a ten-year presumptive term for those using a firearm or other dangerous instrument or causing serious physical injury) and respective presumptive terms of fifteen and twenty-five years for second- and third-felony offenders. AS 12.55.-125(i). . Judge Van Hoomissen found Hancock to be a "worst offender" and concluded that he could therefore be sentenced to a maximum term. State v. Wortham, 537 P.2d 1117, 1128 (Alaska 1975). Judge Van Hoomissen seems to have concluded that the number of separate offenses for which Hancock was convicted was determinative of the maximum term. In this regard, the sentencing court erred. A "worst offender" designation, standing alone, permits imposition of the maximum term for the single most serious offense — in Hancock's case, a term of twenty years. The designation does not, however, automatically permit consecutive sentences exceeding the maximum for the single most serious crime. In order to impose such a sentence, the court must actually find, as a matter of fact, that the defendant will continue to pose a danger to the community during the extended term and that his continued isolation is actually necessary. See Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977); Cleary v. State, 548 P.2d 952, 956 (Alaska 1976); Lacquement v. State, 644 P.2d 856 (Alaska App.1982). Moreover, a Mut-schler-Cleary finding does not necessarily justify pyramiding consecutive maximum sentences; rather, such a finding permits only an incrementally more severe sentence based on the actual need for protection of the public under the totality of the circumstances of the prosecution's case. See Andrews, 707 P.2d at 910. . Judge Van Hoomissen apparently inferred a maximum ninety-nine year sentence from legislative reclassification of first-degree sexual assault into an "unclassified" felony, a class formerly comprised of murder in the first and second degree, misconduct involving a controlled substance in the first degree, and kidnapping for which maximum ninety-nine year sentences were provided. AS 12.55.125(a) and (b). In fact, the legislature has increased the maximum sentence for sexual assault in the first degree from twenty to thirty years. See Former AS 12.55.125(c); AS 12.55.125(i). . In addition to his sentence appeal, Hancock argues that we should reconsider our prior conclusion that the violation of the protective order at trial was harmless error. See Hancock, 706 P.2d at 1165-69. This issue was not reserved for further consideration by us in our remand to the superior court. Our prior holding is therefore the law of the case and should only he disturbed if we are convinced that it was patently erroneous. See, e.g., Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska 1979). We find nothing in Hancock's brief that persuades us that we were in error in our prior opinion. We therefore decline his invitation to reconsider that issue. . Given the extensive record in this case, we leave it to the discretion of the trial court whether an additional sentencing hearing should be held or a new judgment entered on the existing record.

10433312

Pamela Sue SZMYD (Boland), Petitioner, v. Gary Wayne SZMYD, Respondent

Szmyd v. Szmyd

1982-02-26

No. 5854

14

22

641 P.2d 14

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

Pamela Sue SZMYD (Boland), Petitioner, v. Gary Wayne SZMYD, Respondent.

Pamela Sue SZMYD (Boland), Petitioner, v. Gary Wayne SZMYD, Respondent. No. 5854. Supreme Court of Alaska. Feb. 26, 1982. George F. Schaefer, Alan J. Hooper, Alaska Legal Services Corp., Fairbanks, for petitioner. Gerard R. LaParle, Merdes, Schaible, Sta-ley & DeLisio, Inc., Fairbanks, for respondent. Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

5221

32167

OPINION CONNOR, Justice. This petition raises the question of whether an Alaska superior court, which renders the original marriage dissolution decree, retains jurisdiction to modify custody when the non-custodial parent continues to reside in the state, but the custodial parent and the sole child have lived outside the state for the past two and one-half years. If there is jurisdiction, a corollary issue is whether the superior court erred in ruling that jurisdiction should not be declined on inconvenient forum grounds. In our view, the court had jurisdiction but initially abused its discretion by failing to articulate its reasons for refusing to decline jurisdiction. Therefore, we remanded the case to the trial court for a statement of reasons for its refusal to dismiss. After reviewing that statement, we have concluded that the trial court should have dismissed or stayed the case on inconvenient forum grounds. Pamela and Gary Szmyd ended their marriage on October 12, 1977. The dissolution decree, issued by a Fairbanks superior court, gave Pamela custody of Sean, the couple's one-year-old child. A year later, in the fall of 1978, Pamela and the child moved to Washington. They resided there for two years, then moved to California in early September of 1980. On December 5, 1980, Gary filed a motion in Fairbanks for a modification of the custody decree. Pamela moved to dismiss for lack of jurisdiction or, alternatively, on the ground that Alaska was an inconvenient forum. The superior court denied her motion, and Pamela sought review. We stayed the superior court proceedings pending our review of the petition. A. Modification Jurisdiction It has been said that decree-state courts retain a continuing jurisdiction to modify a custody decree. See Leighton v. Leighton, 596 P.2d 8, 9 n.4 (Alaska 1979). The source of continuing, or modification, jurisdiction is Section 14 of the Uniform Child Custody Jurisdiction Act (UCCJA). Bodenheimer, [The Reporter for the Act], supra note 2, at 216. That section confers a rather inverted jurisdiction: it prohibits a non-decree-state's exercise of jurisdiction except in limited circumstances. Alaska's version of this section, codified at AS 25.30.130, differs only slightly from the uniform act. The question arises, however, as to whether the jurisdictional prerequisites of the act must be met in order for a decree-state to exercise merely modification jurisdiction. Custody determinations can only be made in jurisdictionally sound proceedings. See Layne v. Niles, 632 P.2d 234 (Alaska 1981). In Layne we held that even though parents have reached an agreement concerning custody, when they are seeking a dissolution of their marriage under AS 09.55.231(a), a superior court cannot enter a custody order affecting the children unless the jurisdictional prerequisites of AS 25.30.020(a) are met. 632 P.2d at 236. We reasoned that such an order involved a "child custody determination" and was, therefore, subject to the requirements of the act. Gary's request for a modification of custody similarly necessitates "a custody determination," AS 25.30.900(2); and the jurisdictional provisions of AS 25.30.020 expressly encompass all custody determina tions and modifications. The statute states, in part, that "[t]he superior court has jurisdiction to make a child custody determination by . . modification decree if the conditions set out in any of the following paragraphs are met . " (emphasis added). AS 25.30.020(a). Any ambiguity as to whether AS 25.30.020 must be satisfied in order to exercise modification jurisdiction seemingly was clarified by the contemporaneous amendment of AS 09.55.205 (Judgments for Custody). To the extent relevant here, this statute was amended as follows in the same bill enacting Alaska's version of the UCCJA: "In an action for divorce or for legal separation the court may, if it has jurisdiction under AS 25.30.020, and is an appropriate forum under AS 25.30.050 and 25.30.060, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, make, modify or vacate an order for the custody of or visitation with the minor child which may seem necessary or proper [AND MAY AT ANY TIME MODIFY OR VACATE THE ORDER]." Ch. 61, § 2, SLA 1977 (CSHB 208amS, at 15). Given the prefatory language in AS 25.30.020, and the reference to that provision in AS 09.55.205, we conclude that the jurisdictional prerequisites of AS 25.30.020 apply when a superior court is asked to modify custody. To the extent that Leighton v. Leighton, 596 P.2d 8 (Alaska 1979), which did not examine AS 09.55.205, is to the contrary, we hereby modify that holding. We must next determine whether these prerequisites were met. Jurisdiction exists if any of the following requirements are met: "(1) this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) the child is physically present in this state and is a child in need of aid as defined in AS 47.10.290; or (3) it (A) appears that no other state would have jurisdiction under prerequisites substantially in accordance with (1) or (2) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) is in the best interest of the child that this court assume jurisdiction. (b) Except under (a)(2) and (3) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination. (c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." AS 25.30.020. Subsection (1) is not met because Alaska has not been the child's home state for over two and one-half years. Nor is subsection (2) applicable on these facts. Alaska does have jurisdiction under subsection (3), however, because neither California nor Washington, the only other states in which the child has lived, could assert jurisdiction substantially in accordance with subsections (1) or (2), on the facts of this case. Subsection (1), the only possibly applicable provision, could not be satisfied by either state as of December 5, 1980, the date the motion for a change of custody was filed and the relevant measuring date. California, where Pamela and the child presently reside, was not a home state at that time. Washington had been the home state, but even under AS 25.30.-020(a)(1)(B) it would not have had jurisdiction because no parent continued to reside there. Because no other court had jurisdiction at the relevant time, subsection (3) above was satisfied and thus the superior court had jurisdiction to consider the motion for a change in custody. B. Inconvenient Forum The UCCJA authorizes a court to decline jurisdiction if the court is an inconvenient forum. The decision to decline jurisdiction is a discretionary one, Loper v. Superior Court, 126 Ariz. 14, 612 P.2d 65, 68 (App.1980); In re Marriage of Kern, 87 Cal.App.3d 402, 410, 150 Cal.Rptr. 860, 865 (1978); and requires that certain factors be considered: "(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others: (1) if another state is or recently was the child's home state; (2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) if better evidence concerning the child's present or future care, protection, training, and personal relationships is available in another state; (4) if the parties have agreed on another forum which is not less appropriate; and (5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in sec. 10 of this chapter. (d) Before determining whether to decline or retain jurisdiction the court may communicate with the court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties." AS 25.30.060. An additional consideration is the parties' convenience and relative hardship in appearing in non-local forums. See William L. v. Michele P., 99 Misc.2d 346, 353-357, 416 N.Y.S.2d 477, 482-84 (Fam.Ct.1979). The purpose of the above provision is to encourage jurisdictional restraint "whenever another state appears to be in a better position to determine custody of a child." Commissioners' Note to UCCJA § 7. Pamela urged the court to decline jurisdiction on the ground that California, where the child and she reside, is the better forum for examining the child's best interests. The superior court originally denied the motion without explaining its reasons. It was, therefore, difficult to determine whether the court abused its discretion, that is, to determine whether it considered the statutory factors, or what interpretation it placed on the facts. Thus we remanded for a statement of reasons. We now hold that it is error for a court to deny an inconvenient forum motion brought under AS 25.30.060 without articulating its reasoning. We are requiring the statement of reasons as an aid to the parties in understanding the trial court's decision and as an aid to this court in carrying out its review function. After remand, the trial court provided the following reasons for denying the inconvenient forum motion: "1. The State of Washington, which was the child's prior home state, was not a convenient forum since none of the parties at the time of the initiation of this request for custody modification lived in Washington. The mother and child living in California for only a short time and the father having his residence in the State of Alaska. California was not the home state of the child. 2. The child was born in the State of Alaska and lived in Alaska for almost three years. The child has had more contact with the State of Alaska than California. 3. The father has had more contact with Alaska than the mother has had with California. 4. More people involved with the child were from the State of Alaska than the State of California. 5. Substantially the relations on both the father and mother's side were living in Alaska in the Fairbanks area at the time of the request for custody modification. The only people involved in California were the mother and child. 6. The objections by the mother as to the cost is not a factor since the father is required to pay the cost of transportation as well as arrangements for the mother while in Alaska." On substantially similar facts, other jurisdictions have stayed or dismissed proceedings in favor of a more appropriate forum. The underlying theme in these decisions is the focus on the child's situation and connections with a particular forum; that is, which forum is best in light of the child's best interests? A good analysis of the questions raised here is found in William L. v. Michele P., 99 Misc.2d 346, 416 N.Y.S.2d 477 (Fam.Ct.1979). The parties in that case were married in New York in 1966. The divorce decree of March, 1974, gave custody to the mother. In August, 1974, the mother, then remarried, moved to Texas. That marriage ended in 1975 or 1976. She subsequently moved to Florida, where she remarried, and then moved, in January, 1977, to Mississippi. When this latest marriage disintegrated, the mother and natural father agreed that the children should start their visitation with him in New York earlier so as to remove them from the domestic turmoil in the Mississippi household. The father retained the children and commenced change of custody proceedings in the New York court in August, 1978, four years after the children and mother had left New York. Id. 416 N.Y.S.2d at 479. After first finding jurisdiction, the court extensively considered whether it was an inconvenient forum. Concluding that it was, the court declined jurisdiction. Before doing so, the court examined five considerations: (a) which state was the home state; (b) which state had the closer connection with the children ; (c) which state had the most readily available evidence concerning the children's present or future care; (d) which party bore the greater hardship in litigating away from home; and (e) whether the exercise of jurisdiction would contravene any of the UCCJA's purposes. Id. 416 N.Y.S.2d at 482-84. The court first noted that Mississippi and not New York was the home state. The court next found that Mississippi held the closer connections with the children : "Likewise, Mississippi appears to have a 'closer connection with the child and his family or with the child and one or more contestants' . The repetition of 'child' is apparently intentional and requires a separate analysis of which state has a closer connection with the infant subjects of the proceeding, apart from its connection with the other participants. This is consistent with the emphasis in the entire statute on encouraging a selection of the forum in the optimum position to determine the best interests of the child. While New York and Mississippi each have roughly equal connections with one parent, New York really has had only scant contact with the children since they left the State shortly after the divorce was granted in 1974 — a sum total of three summer visitation periods before the petition was filed. . . . Mississippi, on the other hand, has been the state of continuous residence of the children since January, 1977. It, and not New York, has the primary parens patriae interest, and the more substantial nexus." (citations omitted; emphasis in original). Id. 416 N.Y.S.2d at 482. Then, in determining which forum held the best evidence, the court looked to the legal principles raised by the father's motion to modify custody. Noting that the substance of the father's allegations was that the children were suffering due to the instability of the mother's life, based upon repeated changes of residence and two unsuccessful marriages, and that he, the natural father, now offered a more stable family unit and superior physical surroundings, the court concluded: "From the foregoing, it is clear that the crucial contested issues of fact raised by the pleadings are concerned with the quality of care exercised by the mother, her stability and the stability of the children's home life with her and the effect, if any, of these factors on the children . [Wjhether this proceeding is litigated in New York or in Mississippi, the critical inquiry will be concerned with the care, conduct and parental ability of the mother, and whether any deficiencies have had an actually or potentially harmful effect on the welfare of the children. The sources of evidence with respect to these issues are most likely to be located in Mississippi, and not in New York." Id. 416 N.Y.S.2d at 482-83. Next, in considering relative hardship, the court noted that the father was in a superior economic position, and although he stipulated to pay the mother's way to New York, he did not agree to bring up Mississippi witnesses on "the threshold issue of the mother's fitness and the quality of the children's lives" in that state. Id. 416 N.Y. S.2d at 483. Since it was "precisely those witnesses whose direct oral and demeanor evidence would be of most benefit to the court in making an appropriate decision on custody", the court concluded that the hardship on the father to prosecute the action in Mississippi would be less than would be the hardship on the mother to come to New York. Id. Finally, the court considered whether exercising New York jurisdiction would contravene any of the act's purposes. Focusing in particular on the danger of condoning post-visitation retention of the children in order to obtain local jurisdiction, the court noted that "[t]he security and stability of the free interstate movement of the children in this case . will not be promoted if this court exercises jurisdiction.... " Id. 416 N.Y.S.2d at 484. The court reasoned that if it assumed jurisdiction, and the father prevailed, the mother might adopt reciprocal tactics and seek modification when the children returned to Mississippi for visitation. Such a pattern of behavior would contravene the act's purposes both of avoiding jurisdictional competition and discouraging continuing controversies over child custody. Accordingly, the court declined to exercise jurisdiction. Other cases have reached similar results. Applying the foregoing analysis to the facts of this case leads to the same result: Alaska should decline to exercise jurisdiction. 1. Home State As previously discussed, when ruling on an inconvenient forum motion, the trial court may consider all facts up to the date of the motion or hearing. Pamela's dismissal motion was heard on March 9, 1981. As of that time, Sean had lived in California six months and thus, by then, had acquired a new home state. The trial court's conclusion to the contrary is erroneous. 2. Closer Connection Sean was born in Alaska and lived his first three years here. Since the fall of 1978, however, this child's only connection with Alaska has been two visitations, one with his grandparents in Unalaska in 1978 and one two-week period with the father in 1979. Sean has, as of the date of this opinion, lived in California for eleven months, and has been enrolled in school there. The child's only connection with Alaska is premised on the fact that his father, and assertedly a majority of the child's relatives, live in Fairbanks (including grandparents, aunts, and uncles). While the child's connection with California has not been that long, it is stronger than the connection he now has with Alaska. Contrary to the trial court's conclusion, which state has accumulated a longer duration of contact is not dispositive. The inquiry must be into which state now has the closer connection with Sean. We conclude that California best satisfies this element. 3. Source of Evidence The essence of Gary's petition to modify custody is that Pamela lacks the ability to take adequate care of the child because (a) she moves too frequently; (b) she is not financially secure; (c) she lacks commercial ties with her community; and (d) she allegedly is interfering with Gary's visitation. Conversely, Gary alleges that he has now completed school, is gainfully employed, has remarried, and that he offers a stable and financially secure environment. These allegations are similar to those in William L. v. Michele P. There the court concluded that the issue of the child's best interests turned, in this type of context, on the custodial parent's circumstances. Thus, it concluded, the state where that parent and the child reside offers the bulk of the relevant evidence. Similarly, as the factual issue in this case is primarily the adequacy of Sean's life in California with Pamela, the bulk of evidence is in California. 4. Relative Hardship After this petition was filed, the trial court ordered Gary to pay Pamela's expenses in attending a hearing in Alaska. But, as in William L. v. Michele P., this order does not encompass assisting Pamela in bringing up witnesses to testify as to her, and the child's, existing situation in California. Due to her financial situation, it appears that she would be unable to do so on her own. The hardship to her is, therefore, significant should Alaska exercise jurisdiction: she would be unable to meaningfully defend her custody of Sean. 5. Contravention of UCCJA Purposes Finally, the exercise of modification jurisdiction arguably conflicts with at least one purpose of the act: to "discourage continuing controversies" over custody. AS 25.30.-010(4). If Gary were forced to litigate the modification issue in California, he would be less inclined to challenge Pamela's custody absent substantial cause. If, on the other hand, Gary can utilize a local court, and compel Pamela to respond in Alaska, there is little practical disincentive to not continue the controversy. In other words, the exercise of modification jurisdiction in this case would facilitate non-local harassment of the custodial parent by the losing parent, and would not operate to discourage continuing the controversy. As we have previously noted, child custody determinations are among the most difficult in the law, and a child may often carry the effects of a custody award for the rest of his life. Sanguinetti v. Sanguinetti, 628 P.2d 913, 916 (Alaska 1981). Custody is to be awarded on the basis of the child's best interests. AS 09.55.205. "For this reason it is extremely important that the court be fully informed at the time it makes its initial decision." Sanguinetti, 628 P.2d at 916. By the same token, it is extremely important that the appropriate forum make custody determinations. After reviewing all the factors, as well as other cases, we believe that California is the more appropriate forum, in light of this child's best interests, to consider a motion for a change of custody. The petition for review is granted and the decision below is reversed. The superi- or court is directed either to grant Pamela's motion to dismiss the modification motion or, alternatively, to stay the proceedings while Gary pursues his claim in a California court. See AS 25.30.060(e), supra note 11. . The remaining issue raised in the petition is unimportant. Pamela asserts that Gary's failure to submit a sworn affidavit as part of his initial pleadings, containing the information specified in AS 25.30.080, requires reversal. AS 25.30.080 requires that a party, in his first pleading or an affidavit attached thereto, "declare under oath whether (1) he has participated, as a party, witness, or in any other capacity, in any other litigation concerning the custody of the same child in this or any other state; (2) he has information of any custody proceeding concerning the child pending in a court of this or any other state; and (3) he knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect- to the child." The purpose of this section is to provide the court with sufficient information to determine jurisdiction, possible joinder of parties, and whether other jurisdictions need to be contacted under the various provisions of the act. Commissioners' Note to § 9 of the Uniform Child Custody Jurisdiction Act (UCCJA). As none of the statutory situations exist, the missing element is merely sworn negative aver-ments, and the superior court properly rejected the argument that this error compelled dismissal on these facts. . Commentators disagree over whether this is an exclusive or concurrent jurisdiction. Compare Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam.L.Q. 203, 216-19 (1981) with Ratner, Procedural Due Process and Jurisdiction to Adjudicate: (a) Effective-Litigation Values vs. The Territorial Imperative; (b) The Uniform Child Custody Jurisdiction Act, 75 N.W.U.L.Rev. 363, 398-99 (1980) and Commissioners' Note to UCCJA § 14. There is agreement, however, that a strong preference in favor of decree-state jurisdiction exists, assuming one party continues to reside there. There is no "other jurisdiction" proceeding involved in this case, and thus it is unnecessary to resolve whether Alaska's continuing jurisdiction is exclusive or concurrent. . Professor Bodenheimer states: "Modification jurisdiction . is governed primarily by Section 14, reinforced, where necessary, by the stronger clean hands rule of Section 8(b). As the Commissioners' Note to Section 6 states, 'once a custody decree has been rendered in one state, jurisdiction is determined by Sections 8 and 14.' " Bodenheimer, supra note 2, at 216. . Section 14 of the UCCJA states: [Modification of Custody Decree of Another State] "(a) If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction. (b) If a court of this State is authorized under subsection (a) and section 8 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with section 22." .Alaska's differences are emphasized: "(a) If a court of another state has made a custody decree, a superior court of this state may not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or has declined to assume jurisdiction to modify the decree, and (2) the court of this state has jurisdiction. (b) If a court of this state is authorized under (a) of this section and § 70 of this chapter to modify a custody decree of another state, it shall consider the transcript of the record and other documents of all previous proceedings submitted to it in accordance with § 210 of this chapter." AS 25.30.130. In our view, the use of "may not modify . . unless ." rather than "shall not modify . unless ." is not a critical distinction. . The statute was amended a second time in 1977, and the statutory version now reads, in part: "In an action for divorce or for legal separation the court may, if it has jurisdiction under AS 25.30.020, and is an appropriate forum under AS 25.30.050 and 25.30.060, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, make an order for the custody of or visitation with the minor child which may seem necessary or proper and may at any time modify or vacate the order." Ch. 63, § 1, SLA 1977 (FCCS CSHB 204). The jurisdictional reference remained the same. . This view is consistent with the uniform act. See Ratner, supra note 2, at 395: "Section 14(a) apparently narrows the scope of significant-connectio,n, substantial-evidence, best-interest jurisdiction by confining modification jurisdiction to the initial-decree state if it meets the prerequisites of the Act." (emphasis in original). In our view, the UCCJA intended that continuing jurisdiction in the original state must rest on some significant connection with a party. See Commissioners' Note to UCCJA § 14. This is frequently easy to satisfy due to the "significant connection" basis for jurisdiction found in Section 3(a)(2) of the UCCJA. See note 8, infra. Alaska's version omits that basis and thus even further narrows both initial and continuing jurisdiction. This view is also consistent with the language of Section 14 of the UCCJA. That provision prohibits a non-decree state from exercising modification jurisdiction unless "the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act. . . . " (emphasis added). See AS 25.30.130. That modification jurisdiction cannot be exercised absent compliance with the jurisdictional prerequisites of Section 3 (AS 25.30-.020) is also consistent with the uniform act's underlying purpose that the appropriate forum make custodial determinations, assuming that the "appropriate forum" is substantially defined by which state meets the jurisdictional prerequisites. Our approach is further consistent with the late Professor Bodenheimer's view that the act was intended "to strengthen the continuing jurisdiction of the state of the initial decree. . . . " Bodenheimer, supra note 2, at 214. Reading the provisions together, once there is a decree, one must look first to the issuing state to see if it continues to have modification jurisdiction, i.e., does it still satisfy the act's jurisdictional prerequisites? UCCJA § 14. If it does, the decree-state has jurisdiction, perhaps exclusively, unless it chooses to decline it on inconvenient forum grounds. See Bodenheimer, supra note 2, at 216-19, 222-24. . Alaska's law omits the following jurisdictional provision found in the UCCJA: "(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; . . " UCCJA § 3(a). . Initial jurisdiction, which California or Washington would have been asserting, must rest on facts developed prior to the initial filing. Rexford v. Rexford, 631 P.2d 475 (Alaska 1980). The initial filing in the posture of this case was Gary's motion for a change of custody. On the other hand, because declining jurisdiction is a discretionary act and is distinct from an absence of initial jurisdiction, there is no reason why events and facts up to the date of the motion to decline jurisdiction cannot be considered. .A "home state" is one in which the child has resided for six months. AS 25.30.900(5). Pamela and the child moved from Washington to California in September of 1980. Gary's motion was filed December 5, 1980. As of that date, the child had not been in California for six months. . The provision specifies these options if the court declines jurisdiction: "(e) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum. (g) If it appears to the "court that it is clearly an inappropriate forum, it may require the party who commenced the proceedings to pay . costs, . . necessary travel, . . . attorney fees.... (h) Upon dismissal or stay of proceedings . . the court shall inform the court found to be the more appropriate forum of this fact AS 25.30.060. . See Bosse v. Superior Court, 89 Cal.App.3d 440, 152 Cal.Rptr. 665 (1979); In re Marriage of Kern, 87 Cal.App.3d 402, 150 Cal.Rptr. 860 (1978); Schlumpf v. Superior Court, 79 Cal. App.3d 892, 145 Cal.Rptr. 190 (1978); Clark v. Superior Court, 73 Cal.App.3d 298, 140 Cal.Rptr. 709 (1977).

10440421

Lawrence HOOVER, Appellant, v. STATE of Alaska, Appellee

Hoover v. State

1982-03-18

No. 6223

1263

1265

641 P.2d 1263

641

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

Lawrence HOOVER, Appellant, v. STATE of Alaska, Appellee.

Lawrence HOOVER, Appellant, v. STATE of Alaska, Appellee. No. 6223. Court of Appeals of Alaska. March 18, 1982. Raymond Funk, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Harry L. Davis, Dist. Atty., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1236

7491

OPINION COATS, Judge. Lawrence Hoover was charged with murder in the first degree, AS 11.41.100(a)(1), for the contract killing of Nancy Williams. Hoover pled nolo contendere and was sentenced to ninety-nine years' imprisonment by Judge James R. Blair. This is the maximum sentence for first degree murder. AS 12.55.125(a). Hoover now appeals to this court, alleging that his sentence is excessive. Having reviewed the record and given due consideration to the memoranda of the parties, we have concluded that Judge Blair was not clearly mistaken in imposing the sentence, and we accordingly affirm. On August 22, 1979, Clarence "Tip" Williams, a psychologist and marriage counsel- or employed at Eielson Air Force Base, purchased an insurance policy insuring the life of his twenty-five-year-old wife, Nancy Williams, in the amount of $60,000 in case of her accidental death. Shortly thereafter, Tip Williams began talking with his friend, Lawrence Hoover, about the. prospect of killing his wife Nancy. By June of 1980, Williams and Hoover had agreed to murder Nancy Williams. By the terms of the agreement, Hoover would be paid between $15,000 and $25,000. On November 9, 1980, Williams and Hoover went grouse hunting with Nancy. Pursuant to the murder plan, Nancy was shot in the face with a .20 gauge shotgun at point-blank range. She was killed instant ly. Williams and Hoover then dragged Nancy's body by her feet through the woods to their car. They brought the body to the Eielson Air Force Base medical clinic where they reported that she had accidentally shot herself while hunting. Following an examination by a doctor, Nancy Williams was officially pronounced dead. Medical personnel at Eielson medical clinic noted that both Williams and Hoover apparently had been drinking. On November 11, 1980, Air Force Sergeant Glen Kidd contacted military authorities and the Alaska State Police. Kidd reported that on the night of October 1, 1980, while he was drinking with Hoover at the Moose Creek Lodge, Hoover had told him that he and Tip Williams were going to kill Nancy Williams. Hoover outlined the hunting "accident" which they had planned and stated that Nancy would definitely not see Thanksgiving. Ultimately, Hoover was charged in a two-count indictment with murder in the first degree, AS 11.41.100(a)(1), and with solicitation to commit perjury, AS 11.56.200 and 11.31.110. On the third day of his murder trial, Hoover pled nolo contendere in exchange for the state's agreement to drop the charge of solicitation to commit perjury and to not make a specific recommendation to the court as to the appropriate sentence. On July 17, 1981, Judge Blair found Hoover to be the worst type of offender within his class, and accordingly, he sentenced Hoover to ninety-nine years' imprisonment. In this appeal, Hoover contends that a sentence of ninety-nine years is excessive. He argues that it was inappropriate for Judge Blair to characterize him as the worst type of offender in his class. While we agree that this is essentially Hoover's first criminal offense, and though we recognize that his military and employment records are favorable, we do not think that such factors must necessarily preclude a finding that Hoover is the worst type of offender. Regardless of the favorable characteristics of the offender, the nature of the offense alone may be enough to support a worst offender classification. See Brown v. State, 601 P.2d 221, 235 & n.38 (Alaska 1979); Wilson v. State, 582 P.2d 154, 156-57 (Alaska 1978). In the instant case, Hoover committed one of the most heinous types of first degree murder. The severity of a coldly premeditated contract murder of a young woman by firing a shotgun into her face at point-blank range cannot easily be dismissed. Accordingly, we cannot conclude that Judge Blair was clearly mistaken in his characterization of Hoover as a worst offender. Furthermore, in light of the nature of this offense, we do not think that Hoover's admission of guilt or his agreement to aid the state in its prosecution of Tip Williams necessitates a finding that Hoover is not the worst type of offender. Finally, despite the length of the sentence imposed, we cannot say that it was inconsistent with the Chaney criteria. State v. Chaney, 477 P.2d 441 (Alaska 1970). Focusing on the low probability of Hoover's rehabilitation, Judge Blair concluded that a lengthy sentence was necessary to isolate Hoover in order to protect society and to assure the deterrence of similar behavior upon his eventual release from confinement. Judge Blair also gave weight to the need to deter others from such conduct and to express the community's condemnation of such behavior. Given the facts of this case and the nature of this offense, we do not feel that Judge Blair was clearly mistaken in imposing a ninety-nine-year sentence. The sentence appealed from is therefore AFFIRMED. . Apparently Williams had previously tried to interest another person in such a murder contract. That person, however, refused the offer. . The record of the case does not definitely indicate whether it was Hoover or Williams who, in fact, fired the fatal shot. It was the state's position throughout the proceedings, however, that it was Hoover who pulled the trigger. . Apparently, while talking to Kidd at the Moose Creek Lodge, Hoover had told of his involvement with Williams in two insurance fraud schemes. In one, Williams and Hoover had burned Williams' car in order to collect the insurance. In the other, Williams had received $2,000 from a third party for faking an accident. Williams in turn had given $1,000 to Hoover. The record does not reflect that any criminal charges were brought or other action was taken in these two incidents. . Hoover also contends that Judge Blair's sentencing remarks indicate that Hoover was penalized for his failure to introduce lie detector evidence regarding his contention that it was, in fact, Williams who fired the fatal shot. This argument is meritless. Upon sentencing, Judge Blair stated, At the time Mr. Hoover entered his plea he stated that he did not pull the trigger in this case, that he would take a lie detector test and prove that and that I would have that at sentencing. Well, no one has presented any evidence along those lines. If there were evidence along those lines, that Mr. Hoover had not pulled the trigger in this case, 1 would be more — I would be more susceptible to being much more lenient in this case. Although Hoover did submit to a lie detector test, he apparently failed it, and thus, he did not introduce the results as evidence in his favor. Absent such exculpatory evidence, Judge Blair sentenced Hoover in accordance with his plea. We think it strained to argue that since Judge Blair stated that he would be more lenient in the face of evidence that Hoover did not pull the trigger, the failure to present such evidence led him to penalize Hoover. In essence, it is more appropriate to conclude that Hoover's failure to present polygraph evidence was neutral in its effect; it was used neither to benefit nor to penalize Hoover.

10403473

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

Greiner v. State

1987-08-21

No. A-1036

662

666

741 P.2d 662

741

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

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

James GREINER, Appellant, v. STATE of Alaska, Appellee. No. A-1036. Court of Appeals of Alaska. Aug. 21, 1987. Sidney K. Billingslea, Asst. Public Defender, Kenai, and Dana Pabe, 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.

1981

11831

OPINION COATS, Judge. James Greiner was convicted, following a jury trial, of two counts of misconduct involving a controlled substance in the second degree. AS 11.71.020(a). Greiner was charged with selling heroin to undercover officer Wilbur E. Hooks on August 22, 1984, and September 6, 1984. Greiner appeals his convictions raising several issues. We conclude that the trial court did not err in finding that Greiner failed to establish the defense of entrapment. However, we conclude that the trial court erred in allowing the counts which involved Greiner to be joined with counts involving other defendants. We accordingly reverse Greiner's convictions. JOINDER Greiner was indicted on two counts of a four-count indictment along with three other defendants, Darrel D. Frazier, Lamar Merrill, and Judy Alexander. Count I of the indictment charged Frazier and Greiner with delivering approximately one-half gram of heroin to Officer Hooks on or about the 22nd day of August, 1984. Count II charged Frazier, Merrill, and Alexander with delivering approximately one gram of heroin to Officer Hooks on or about the 23rd day of August, 1984. Count III charged Frazier with delivering approximately two grams of cocaine to Officer Hooks on or about the 30th day of August, 1984. Count IV charged Greiner with delivering approximately one-eighth of a gram of heroin to Officer Hooks on or about the 6th day of September, 1984. Greiner sought to sever his trial on Counts I and IV from that of his codefend-ants on Counts II and III, in which he was not charged. Greiner based his motion to sever on Alaska Rule of Criminal Procedure 8(b), which provides in relevant part: Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Superior Court Judge Eben H. Lewis denied Greiner's motion. Alaska Rule of Criminal Procedure 8(b) is essentially identical to Federal Rule of Criminal Procedure 8(b). Consequently, we have turned to the federal cases and authorities interpreting Federal Rule 8(b) to interpret the Alaska rule. In general, the interpretations of Federal Criminal Rule 8(b) do not permit joinder of codefend-ants who are charged with similar but unrelated acts. See 8 Moore's Federal Practice § 8.06[2] (2d ed. 1987); 1 C. Wright, Federal Practice and Procedure § 144, at 494-514 (2d ed. 1982); United States v. Velasquez, 772 F.2d 1348 (7th Cir.1985) cert. denied, — U.S. —, 106 S.Ct. 1211, 89 L.Ed.2d 323 (1986); United States v. Andrews, 765 F.2d 1491 (11th Cir.1985) cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986); United States v. Perry, 731 F.2d 985 (D.C.Cir.1984); United States v. Hatcher, 680 F.2d 438 (6th Cir.1982). Unless joinder is permitted under Rule 8(b), codefendants may not be tried together. See, e.g., 1 C. Wright, supra § 144, at 513. The difficult question under Rule 8(b) is when can defendants be said to have engaged in "the same series of acts or transactions constituting an offense or offenses." Generally, under the federal cases, the unifying factor is a conspiracy charge, although a conspiracy charge is not required. However, it appears that there must be a significant connection between the different acts charged, such as a common scheme or plan or joint venture, in order to permit counts involving different defendants to be joined. We find the following discussion from Wright's Federal Practice and Procedure to be helpful: No matter how similar offenses may be, they may not be joined in a case in which there is more than one defendant unless they can be said to arise out of a series of acts or transactions. Three kinds of situations may arise, but the principle just stated is controlling, and the same result should be reached, in each. The simplest situation is that in which it is charged that one defendant committed an offense and that a second defendant committed a similar offense, but there is no allegation that the two offenses arose out of a series of transactions in which both defendants participated. Joinder is not permitted. Next is the situation in which two defendants are jointly charged with committing an offense, and there is an unrelated charge that on some other occasion one of the defendants committed a similar offense. Again joinder is not permitted. The final situation can be best presented by an illustration. An indictment against two defendants charges each of them in one count with having transported a stolen automobile from Oklahoma to Colorado, and in a second count charges each of them with having transported a stolen automobile from Colorado to Oregon. Unless the two incidents can be said to have been part of a series of acts or transactions, joinder is not permitted. There must be two trials, although the government has a choice of how to proceed. It may try both of the defendants for the Oklahoma to Colorado trip and in a separate trial try both of them for the Colorado to Oregon trip. Joinder in each case would be proper under Rule 8(b) since each of the defendants had participated in the transaction giving rise to each trial. Alternatively the government could try the first defendant charging both offenses and separately try the second defendant charging both offenses. If it chooses to proceed in that fashion a single defendant would be involved in each case and the joinder as to him of offenses of the same character would be authorized by Rule 8(a). The one thing the government cannot do is try both defendants on both charges in a single trial. There is good reason why this restriction should apply. As stated by the District of Columbia Circuit: When similar but unrelated offenses are jointly charged to a single defendant, some prejudice almost necessarily results, and the same is true when. several defendants are jointly charged with a single offense or related offenses. Rule 8(a) permits the first sort of prejudice and Rule 8(b) the second. But the Rules do not permit cumulation of prejudice by charging several defendants with similar but unrelated offenses. 1 C. Wright, Supra § 144, at 508-18 (footnotes omitted). We have reviewed the record in this case and fail to see a sufficient connection between Counts II and III, which do not mention defendant Greiner, and the two counts in which he was charged. Although there was evidence that all the defendants were willing to sell drugs and were well-acquainted and cooperated with each other in individual drug sales, there was no real evidence of a conspiracy, joint venture, or common scheme or plan. Rather, the evidence suggests individuals who, either separately or in combination, made separate drug sales. Under these circumstances, joinder of the offenses was improper. We accordingly reverse Greiner's convictions. ENTRAPMENT Although our ruling on joinder disposes of this case, we must still review Greiner's claim of entrapment. If we found merit to his claim, he would be entitled to a dismissal of Count IV. The following is the factual background necessary for a discussion of the entrapment issue. Greiner's Testimony Greiner testified that Frazier was driving him to work when they saw Wilbur Hooks and Jerry Raygor. Frazier stopped and went over to their car. Greiner stated that he is a heroin addict and knew that Raygor was also a heroin user. When Frazier and Greiner reached Hooks' car, Raygor said that he was sick and asked if they knew where to get heroin. Greiner said that he did, and agreed to go get drugs for Ray-gor. Hooks, who was paying for the drugs, was afraid to let Greiner leave with his money, so Greiner gave Hooks his personal heroin supply to hold until he returned. Greiner stated that he was unable to obtain more heroin and returned to Hooks' car. He asked Hooks to return the heroin, but Hooks asked Greiner to sell him the bag that Hooks was holding. Greiner was reluctant because it was his personal supply, but eventually sold Hooks the bag. However, Greiner testified that he never received the money; Hooks handed the money to Frazier. Greiner testified that he sold Hooks the heroin because Raygor was complaining about feeling sick and needing drugs, and that he, as an addict, sympathized with Raygor's problems. Greiner contended that he would not have given up his personal heroin supply if Raygor had not said that he was sick. Officer Hooks' Testimony Officer Hooks testified that he and Ray-gor were driving when Greiner flagged down Hooks' car. Greiner handed Hooks a bag of heroin to examine. Frazier was present, but did not participate in the transaction. Hooks told Greiner that he wanted more heroin than was in the bag that Greiner handed him. Greiner took $100 from Hooks to go obtain more heroin while Hooks held the first bag as collateral. Greiner returned without finding more heroin and agreed to sell Hooks the original bag. Hooks testified that Greiner kept the $100 which Hooks had given him and gave Hooks $50 in change. Officer Hooks denied that Raygor said anything about being sick and stated that Raygor did not exhibit any symptoms of drug withdrawal. Judge Lewis concluded that there was no entrapment. He found that the speed with which Greiner agreed to go get more heroin and the quickness of the sales transac tion indicated a willingness on Greiner's part to sell drugs. The court found that Officer Hooks was a more credible witness than Greiner and accepted Hooks' version of the events. Judge Lewis found that he could not find entrapment "even granting Mr. Greiner the benefit of the doubt." Entrapment is an affirmative defense. Alaska applies an objective standard and the burden is on the defendant to establish by a preponderance of the evidence that the police "induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense." AS 11.81.450; Grossman v. State, 457 P.2d 226, 229 (Alaska 1969); Folsom v. State, 734 P.2d 1015, 1017 (Alaska App.1987). The issue is for the court, not for the jury, and the trial court's factual findings are to be reversed only if clearly erroneous. 734 P.2d at 1017. In Folsom v. State, 734 P.2d 1016-18, on very similar facts, we concluded that the trial court did not err in rejecting an entrapment defense. In the instant case, Judge Lewis indicated that even under Greiner's version of the facts, Greiner had not established an entrapment defense. For the reasons stated in Folsom, we conclude that the trial court did not err in rejecting the entrapment claim even if it accepted Greiner's version of the transaction. Greiner's conviction is REVERSED and the case is REMANDED to the superior court. . James Greiner was apparently present during this transaction but was not charged. . Darrel Frazier, relying on his fifth amendment right, did not testify at the entrapment hearing. . Given our decision that there was no entrapment, even under Greiner's version of the events surrounding Count IV, it follows that Greiner was not prejudiced by his inability to call Jerry Raygor as a witness at the entrapment hearing. We note, however, that the record does not reflect that Greiner made an attempt to call Raygor as a witness at the entrapment hearing.

10558192

Robert H. BOHM, Appellant, v. STATE of Alaska, Appellee

Bohm v. State

1971-01-29

No. 950

159

160

480 P.2d 159

480

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:43.589564+00:00

CAP

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

Robert H. BOHM, Appellant, v. STATE of Alaska, Appellee.

Robert H. BOHM, Appellant, v. STATE of Alaska, Appellee. No. 950. Supreme Court of Alaska. Jan. 29, 1971. James K. Tallman, Anchorage, for appellant. Robert Opland, Hagans & Opland, Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.

1089

6466

OPINION DIMOND, Justice. After the plaintiff in a civil action has completed the presentation of his evidence, his action may be dismissed under Civil Rule 41(b) if the trial judge finds that "upon the facts and the law the plaintiff has shown no right to relief." In Rogge v. Weaver we held that the trial judge should not grant a Civil Rule 41(b) motion to dismiss if the plaintiff has presented a prima facie case based on unimpeached evidence, even though the judge as the trier of facts may feel at that point in the trial that the plaintiff has not sustained his burden of proof. Appellant contends that the trial judge ignored our admonition in Rogge by dismissing his action against the state after he had completed the presentation of his evidence. Appellant claims that evidence he had presented showed he had suffered personal injuries by reason of neglect of state employees, that this evidence stood uncontradicted and was unimpeached at the close of appellant's case and, therefore, that a prima facie case of negligence and liability had been established. This being .so, appellant argues that the judge was wrong in dismissing the action under Civil Rule 41(b). Appellant was a state prisoner. His action against the state was based on damage to his left hip which he said was caused by negligent conduct on the part of state employees while appellant was being transported on a truck between the city of Anchorage and the state prison farm. In his complaint, appellant alleged that during a truck ride in July 1964 his left hip was injured, necessitating an osteotomy to be performed. Appellant presented evidence tending to prove this allegation. Dr. Wichman, who had treated appellant, was called as a witness by appellant. Dr. Wichman testified from x-rays and his own professional observations that appellant had been suffering from osteoarthritis of the left hip for a long time before the truck ride of July 1964, and that this condition is one which continuously deteriorates if not treated. Dr. Wichman stated that the condition of appellant's untreated hip shortly after the truck ride in July 1964 was only slightly worse than it had been about eight months earlier in November 1963. He testified that although a rough truck ride could aggravate an osteoarthritic condition, there was no indication shortly after the truck ride that there had been a recent aggravation of that condition. Dr. Wichman concluded that appellant's condition was the result of an old, rather than a recent injury. In September 1964 Dr: Wichman performed an osteotomy of plaintiff's left hip. The plate which had' been placed in appellant's hip was removed on June 16, 1965. Plaintiff alleges that subsequently rough treatment by the state caused a refracture in the hip region. The only rough treatment by the state which appellant points to is another truck ride on June 23, 1965. Appellant testified in support of this allegation. Dr. Wichman also gave testimony on this point from his study of x-rays taken in March 1965, before the truck ride, and in July 1965, after the truck ride. His testimony tended to show that appellant's hip was in approximately the same condition after the truck ride of June 23, 1965 as it was before it. Appellant's complaint also involved a swollen and ulcerated condition of his left leg which he alleged to have been caused during the truck ride of June 23, 1965. Appellant testified that his leg became swollen, and the incision from the recent operation on his left hip ruptured, as a result of a bumpy ride while seated on the gas tank of a truck. Dr. Wichman testified that in his professional opinion the condition complained of was the result of a stitch abscess — an infection in the stitch itself. In reviewing the evidence produced during the presentation of appellant's case, it is clear that appellant had not presented a prima facie case based on unimpeached or uncontradicted evidence. The testimony of his own witness, Dr. Wichman, was contradictory of appellant's testimony in that it tended to show that appellant's injuries were not caused by the truck-riding incidents which appellant complained of. The trial judge, in reviewing the evidence at the close of appellant's case, gave greater weight to the medical testimony presented by appellant, than to appellant's own testimony. He made specific findings of fact relating to the evidentiary matters presented, and concluded that appellant had produced no evidence from which the court could conclude that any act or failure to act for which the state was responsible had caused or contributed to appellant's injuries. Appellant has failed to point out convincingly where the findings of the trial judge are clearly erroneous. Our independent review of the record has not left us with a definite and firm conviction that the trial judge made a mistake in making the findings that he did and in dismissing appellant's action under Civil Rule 41(b). The judgment is affirmed. ERWIN, J., not participating. . Civil Rule 41(b) provides in part: After the plaintiff lias completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. . 368 P.2d 810 (Alaska 1962). . Id. at 813. . This case was before us earlier. We remanded to the trial court to make adequate findings of fact and conclusions of law, and in the meantime retained jurisdiction of this appeal. Bohm v. State, 453 P.2d 410 (Alaska 1969). Such findings and conclusions have now been filed. . An osteotomy involves placing a plate on the hip joint in one operation, leaving it there for a period of time, and then removing it in a separate operation. . Palfy v. Rice, 473 P.2d 606, 609 (Alaska 1970); State v. Phillips, 470 P.2d 266, 268 (Alaska 1970); Steward v. City of Anchorage, 391 P.2d 730, 731 (Alaska 1964).

10563994

Arlie Roy POPE, Appellant, v. STATE of Alaska, Appellee

Pope v. State

1971-02-25

No. 1127

697

698

480 P.2d 697

480

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:43.589564+00:00

CAP

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

Arlie Roy POPE, Appellant, v. STATE of Alaska, Appellee.

Arlie Roy POPE, Appellant, v. STATE of Alaska, Appellee. No. 1127. Supreme Court of Alaska. Feb. 25, 1971. James R. Clouse, Jr., Anchorage, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., and Richard R. Felton, Asst. Dist. Atty., Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

588

3550

OPINION ERWIN, Justice. ON PETITION FOR REHEARING Appellant argues in his petition for rehearing that he in fact requested in structions pertaining to the substantive test for insanity and made timely objections to the instructions concerning the definition of insanity which were given by the trial court. In support of these contentions, appellant alludes to an in-chambers conference, not on the record, during which appellant asserts he made extensive objections to the trial court's proposed charge to the jury. Without reaching any issues of veracity, we are of the view that basic fairness to all parties to an appeal requires that we limit our review to matters appearing in the record. Appellant did request two separate instructions concerning insanity and the burden of proof in cases where insanity is an issue. One of these instructions was based on the Chase case and the other upon a substantially different theory. However, from the record it appears that no objection was made to the trial court's definition of insanity. The trial court did give a definition of insanity which was identical with that required by Chase and which was suggested in one of appellant's requested instructions. The only objection advanced by appellant to the court's instruction on the issue of insanity and the burden of proof was directed to the issue of burden of proof. The entire focus of appellant's arguments to the trial court was on the burden of proof issue. Appellant did not present arguments or expert testimony on the record which raised the issue of insanity. Therefore, we are left in considerable doubt as to whether this issue was presented with sufficient clarity to the trial court to be reviewed on appeal. We, therefore, deny the Petition for Rehearing. . There is a practical problem of getting all parties to agree to events occurring in the heat of trial when there is no admittedly impartial third party to record them. We do not wish to be forced to make a choice of conflicting versions of unrecorded events from persons who are officers of the court. . This same choice was made by appellant in argument for a judgment of acquittal at the close of the state's case, on motion for a judgment of acquittal at the close of all the evidence, in the Statement of Points on Appeal, and in the Specification of Error in appellant's brief filed in this court. . The trial court noted that the testimony of the only psychiatrist, Dr. Langdon, did not support any claim of mental illness or mental defect except for diminished capacity. . Crim.R. 30(a) specifically requires that objections to instructions must be clearly stated as to the matter which is objectionable in order to give the trial court the necessary opportunity to correct possible errors. . We call attention to members of the bar that Supreme Ct.R. 35(b) specifically sets forth the form and length of Petitions for Rehearing so that future compliance will be assured.

11716427

Karl C. MORGAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Morgan v. Municipality of Anchorage

1982-04-22

No. 6061

691

693

643 P.2d 691

643

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

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

Karl C. MORGAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Karl C. MORGAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 6061. Court of Appeals of Alaska. April 22, 1982. Donald D. Hopwood, Kay, Christie, Fuld, Saville & Coffey, Anchorage, for appellant. David G. Berry, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1017

6276

OPINION COATS, Judge. Karl C. Morgan appeals to this court from his conviction and sentence for driving while intoxicated, in violation of AMC 9.28.-020(A). Morgan first contends that the ordinance and the instructions of the court violated his right to due process of law because neither the ordinance nor the instructions specified the intent which was a necessary element of the offense. Morgan filed a pretrial motion to dismiss the charges against him on the ground that the ordinance violated his due process rights by not requiring criminal intent. This motion was denied by the court. At trial the judge instructed the jury on intent as follows: In the crime charged in this complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he is acting with criminal intent, even though he may not know that his act or conduct is unlawful. We hold that the trial court did not err in refusing to dismiss the charges against Morgan, at least as to the offense of driving while under the influence of intoxicating liquor, which is the section of the ordinance under which Morgan was convicted. AMC 9.28.020(B)(1). The trial court's instruction on criminal intent requires intentional conduct. This implies, at a minimum, that Morgan could only be convicted under this instruction if he intentionally consumed alcohol and intentionally drove his car. We believe that the court's instruction construed the ordinance to provide for sufficient criminal intent to avoid any unconstitutional application to Morgan. See State v. Rice, 626 P.2d 104, 108 (Alaska 1981). Morgan also argues that the ordinance should be construed to require a defendant to know that he is under the influence of intoxicating liquor before he can be found to have violated the ordinance. We do not believe that a person who intentionally drinks and intentionally drives must be aware that he is under the influence of alcohol in order to be convicted under AMC 9.28.020(B)(1). It certainly does not make sense to allow a defendant to claim that his intentional consumption of alcohol impaired his ability to know that he was intoxicated. It does make sense to require a person who drinks and drives to be responsible for not drinking to the point where he is under the influence of alcohol. He should drive at his peril rather than only at the public's peril. We find no due process violation. We also find the trial court did not err in giving the instruction on criminal intent. Morgan did not object to this instruction. We do not find plain error. Morgan next argues that the breathalyzer results were improperly admitted into evidence because the breathalyzer calibration documents did not comply with Alaska Evidence Rule 902. The municipality concedes that the breathalyzer calibration documents did not comply with the evidence rule, but has indicated that it can bring the documents into compliance. We have decided that an appropriate remedy is to remand the case to allow the municipality to establish the authenticity of the breathalyzer documents. We have concluded that Morgan was not unfairly harmed by admission of the calibration report and other breathalyzer documents, assuming their authenticity can be shown by compliance with Rule 902 at this time. First, the documents in question do substantially comply with Rule 902(2) and may comply with Rule 902(4). Second, admission of these documents did not preclude Morgan from disputing the authenticity of the documents or of the breathalyzer test before the jury as a factual matter. See Commentary to Alaska R.Evid. 902, ERC 277. Given these factors, we see no reason to bar the municipality from establishing the foundational requirements for the documents at this time. Morgan also raises two issues concerning his sentence. He first argues that the court improperly relied on his high breathalyzer reading in imposing sentence. Morgan argues that the breathalyzer documents were inadmissible hearsay because of the alleged Evidence Rule 902 violation. He also argues that it is impossible to tell from the record whether the jury accepted or rejected the breathalyzer evidence and that the court therefore should not have admitted this evidence. Assuming that on remand the municipality establishes a proper foundation for admission of the breathalyzer results under Evidence Rule 902, we find the judge did not err in considering the breathalyzer evidence. Properly admitted breathalyzer evidence is sufficiently verified to be admissible for purposes of sentencing. See Nukapigak v. State, 562 P.2d 697 (Alaska 1977). We have formerly decided that the trial judge can consider sufficiently verified evidence even though it is not clear whether the jury accepted or rejected the evidence. Huckaby v. State, 632 P.2d 975, 976 n.2 (Alaska App.1981). Finally, Morgan argues that the trial judge erred in ruling that he had no authority to suspend revocation of a driver's license for a conviction for driving while intoxicated under the municipal ordinance. We do not need to decide this issue. The trial judge stated that even if it had been within his power to suspend the revocation of Morgan's license, he would still have revoked Morgan's license. It therefore seems clear that the legal issue which Morgan raises had no effect on the sentence which was imposed. We therefore conclude this issue is moot. We remand the case to allow the municipality to authenticate the breathalyzer documents. In the event that the breathalyzer documents are properly authenticated, the conviction and sentence are affirmed. In the event the breathalyzer documents are not authenticated, Morgan may apply to the trial court for appropriate relief. The ease is REMANDED.

10409615

URSIN SEAFOODS, INC., Appellant, v. KEENER PACKING COMPANY, INC. and Arthur Amys, Appellees

Ursin Seafoods, Inc. v. Keener Packing Co.

1987-09-04

No. S-1584

1175

1181

741 P.2d 1175

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

URSIN SEAFOODS, INC., Appellant, v. KEENER PACKING COMPANY, INC. and Arthur Amys, Appellees.

URSIN SEAFOODS, INC., Appellant, v. KEENER PACKING COMPANY, INC. and Arthur Amys, Appellees. No. S-1584. Supreme Court of Alaska. Sept. 4, 1987. James D. Rhodes and Wevley William Shea, Hartig, Rhodes, Norman, Mahoney & Edwards, Anchorage, for appellant. George M. Kapolchok, Gary M. Guarino, Atkinson, Conway & Gagnon, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3514

21405

OPINION COMPTON, Justice. This appeal is from a judgment entered after a trial awarding damages to Keener Packing Co., Inc. (Keener) in compensation for the breakdown of a fish processing barge it had chartered from Ursin Sea-foods, Inc. (Ursin). The issues presented by this appeal are the proper interpretation to be given the language of the charter agreement and the propriety of the attorney's fees and costs award. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 1984 Keener entered a contract to purchase salmon in Bristol Bay which it planned to process using a floating processor and its plant in Kenai. Keener entered agreements with Ursin to charter a fish processing barge, the Great Alaskan, and to purchase a landing craft, the Miss Piggy. In addition, the parties reached collateral agreements with regard to repair and preparation work which was to be done on the Great Alaskan before the charter began. The charter was for a period of 90 days, beginning around June 5, 1984, at a rate of $2,000 per day. Three of the charter agreement provisions are particularly relevant. First, the charter agreement provided that before the charter began Ursin and Keener would "thoroughly inspect the vessel including whatever [Keener] feels is necessary to determine that all equipment is operational to [Keener's] satisfaction," that Ursin would "have a maximum of 10 days to remedy any deficiencies noted during this inspection," and that the charter period would begin after correction of deficiencies. The agreement also provided: Charterer warrants that as of the signing of this agreement, he has inspected the vessel and deems it in all respects adequate for his intended purposes and holds owner harmless regarding all claims and disputes that might arise from representations as to the performance and or suitability of the vessel. An additional provision of the charter agreement here in question provides: In the event a major breakdown occurs where it becomes impossible to continue operating, charterer will do everything possible to put the equipment back in working order and owner agrees to assist as necessary. If 48 hours after owner is notified, vessel is still inoperable and the cause of the breakdown is determined by a qualified marine surveyor, selected by owner, to have occurred by no fault of the charterer, charter fee will cease to accrue from the time the 48 hour period lapses until the repairs are made. Charterer will present expenses incurred to owner at end of charter for settlement. If it is determined that the breakdown is a result of an accident or negligence on the part of the charterer, the charter fee will continue to accrue uninterrupted [sic] and charterer will bear all repair expenses. Arthur Amys, Keener's President, inspected the Great Alaskan prior to executing the charter agreement. Keener and Ursin also entered a side oral agreement that Keener personnel would repair storm damage to the Great Alaskan to prepare it for the charter. The main damage to be repaired by Keener was to the mobile homes on the deck that were to serve as the crew's living quarters. Keener personnel began making repairs in late May, after the charter agreement had been executed. Keener also hired a chief engineer, Gary Flatt, who had been Ursin's chief engineer on the Great Alaskan the previous fishing season. Beginning around May 20, Flatt worked on the vessel's engines, preparing them for the charter. He found the starboard engine to be weak and strongly recommended that it be overhauled. Keener employee Michael Sawinski expressed this concern to Ursin's Kodiak general manager Charles Beach. Beach suggested that Sawinski get a written bid on the cost of the repair to the starboard engine. Sawinski obtained a bid from Ben Everidge, a diesel mechanic who was working on the port engine. Everidge recommended that an in-frame overhaul be done, and prepared an estimate. Beach was himself concerned and called Ursin's Seattle office since he did not have authority to go forward with such a major repair. He told Mike Samsel, Ursin's Vice President, that the engine needed work. Samsel said they would consider the request but denied it the next day. Sawinski testified that Beach told him Ursin did "not want to do anything about it. They will fix it when it breaks." Norman Ursin, Ur-sin's president, testified that he had no knowledge of the request that the starboard engine be rebuilt and that he had heard only of a vague request for an engine rebuild kit. Norman Ursin stated that the request was denied because in the event such a kit were needed, someone else would have to go out to the barge to do the work anyway, "and at that time [Ursin] would do it." The Great Alaskan left Kodiak for Bristol Bay on June 10, 1984. The repair work had not been completed and was continued en route to Bristol Bay. The trip to Bristol Bay took ten or eleven days. Keener then spent two days setting up its processing operation. A few days after arrival in Bristol Bay, the Great Alaskan's generators began to experience repeated failures. First, the port generator began throwing sparks and the port engine was shut down so that Flatt could make repairs. Once Flatt got the port generator running, the starboard generator failed. Flatt and Sawinski spent 48 hours attempting to repair the starboard generator but were unsuccessful. Sawin-ski then flew to Kenai in an unsuccessful attempt to obtain a standby generator. Meanwhile, the turbo charger on the port engine failed and Flatt took the turbo charger from the non-functioning starboard engine and used it to get the port engine running again. After Sawinski returned from Kenai, the port generator broke down and the Great Alaskan was without power for processing from June 30,1984 until July 3,1984. During this time, only the auxiliary generator was operational. It was too small to operate the fish processing equipment. Keener notified Ursin of the generator breakdowns. A specialist, Forrest Hayden, was flown out to the vessel on July 2,1984. Hayden determined that the port generator was defective. He also concluded that the generators had suffered mechanical damage due to improper long term maintenance. Not until the next day, July 3, was Hayden able to get the starboard engine and two of the three compressors running. After Hayden's inspection, the parties decided to purchase two new generators. The port engine was brought on line on July 6. Finally, on July 8, both engines were back running three compressors at full power. But the generator problems had seriously disrupted Keener's processing operations. The starboard engine failed completely that evening (July 8). Flatt determined that the engine seized due to a mechanical failure, as opposed to loss of oil, and concluded that the engine needed an overhaul. Amys informed Ursin of the breakdown and that Keener would fly someone out to examine the engine. James Neff, a diesel mechanic, flew out to the vessel on July 10. Neff examined the engine and concluded that it needed a major overhaul. Neff did not determine the cause of the breakdown, but his findings indicated that there was oil in the engine and that this had not been added after the seizure. Amys informed Samsel of Neffs report and the two argued over what was to be done. Keener then decided to terminate the charter. The Great Alaskan was towed to Kodiak, arriving August 4, 1984. From July 1 on, Keener had been able to process the fish it had on board sporadically and at a reduced rate using whichever engine was operating. In May 1985, Ursin hired Dale Johnson, a marine surveyor, to inspect the Great Alaskan's engines. Johnson was unable to determine the cause of the engine failure. Norman Ursin conceded at trial that neither Johnson nor any other marine survey- or ever determined that Keener had caused the breakdown. In September 1984, Ursin filed a complaint alleging that Keener was in breach of the purchase agreement for the Miss Piggy. Keener conceded that it had not made payments on the Miss Piggy but counterclaimed that any amount it owed was offset by amounts it was owed by Ursin under the charter agreement for the Great Alaskan. Ursin then amended its complaint, adding claims for breach of the charter agreement and damage to the Great Alaskan. After trial, Keener was awarded $234,648, offset by $60,000 for amounts it owed on its contract to purchase the Miss Piggy for a net award of $174,648. Ursin appeals the trial court's finding that it breached the implied warranty of seaworthiness and express provisions of the charter agreement. It also challenges the attorney's fees and costs awarded to Keener. Because we find the record clearly supports the trial court's finding that Ursin breached express provisions of the charter agreement, we need not reach the implied warranty of seaworthiness issue. II. DISCUSSION A. BREACH OF CONTRACT. The superior court found that Ursin breached the charter agreement. The court determined that Ursin had breached its duty under paragraph 2 to prepare the Great Alaskan for the charter. The court also found that Keener did not cause the breakdown and that Keener was entitled to recover its charter expenses and repair costs pursuant to paragraph 5 of the charter agreement. 1. Standard of Review. We will substitute our independent judgment when reviewing a trial court interpretation of a written contract based exclusively on documentary evidence, but we apply the "clearly erroneous" standard when the trial court has relied upon extrinsic testimonial evidence. Kennedy Associates, Inc. v. Fischer, 667 P.2d 174, 179 (Alaska 1983). A reviewing court is not to weigh conflicting evidence or assess the credibility of witnesses; these are functions peculiarly within the province of the trial court. Penn v. Ivey, 615 P.2d 1, 3 (Alaska 1980). In reviewing the trial court's interpretation of the contract, we view the facts in the light most favorable to Keener, as the prevailing party. Wright v. Vickaryous, 598 P.2d 490, 497 (Alaska 1979). 2. Ursin's Duty to Make Pre-Charter Repairs. Paragraph 2 of the charter agreement required Ursin and Keener to inspect the Great Alaskan and provided that Ursin would "remedy any deficiencies" that were discovered. Norman Ursin and Samsel admitted that Ursin agreed to put the vessel in working order and that Ursin was required to correct any deficiencies. While preparing the Great Alaskan for the charter, Keener requested Ursin to overhaul the starboard engine. Everidge, an independent mechanic, examined the engine and prepared an estimate for an "in-frame" overhaul. Despite its contractual obligation to "remedy any deficiencies," Ursin refused Keener's overhaul request. Ursin's manager, Beach, advised Keener that Ursin would fix the engine if and when it failed. Norman Ursin's claim that an overhaul request was never made was contradicted by the testimony of several witnesses and was rejected by the superior court. Norman Ursin confirmed that Ursin's response to Keener was that if an overhaul became necessary during the charter Ursin would go out and do it. We were never told that that engine needed to be rebuilt. We were told that it would be nice to have these parts in case we needed out there, [sic] and our response was to have the work done, somebody else would have to go out there anyway, and at that time we would do it, (Emphasis added). Soon after the Great Alaskan arrived in Bristol Bay, it began experiencing engine problems which culminated in the seizure of the starboard engine on July 8. The superior court found that these breakdowns were due to inherent mechanical failure rather than Keener's alleged negligence. This finding is supported by the record. Hayden reported that the generators had suffered mechanical damage and had failed due in part to poor long-term maintenance. Refuting Ursin's claim that the starboard engine seized because Keener negligently allowed it to run out of oil was testimony that the engine's oil and filters had just been changed in Kodiak, that the oil gauges were easy to monitor, and that Flatt had checked the oil just prior to the breakdown. Flatt testified that there was oil in the engine and that the seizure was due to mechanical failure. Neff's on-site inspection confirmed that there was oil in the engine when it seized. Keener presented evidence from several witnesses as to the engine's old age, weakness and history. The repair files indicated that the engine had not been rebuilt since before 1985. Moreover, Keener had only operated the engines for a short period before the breakdowns. There was evidence that the engine damage was due to faulty fuel injectors which may have been damaged prior to the charter by Ursin's water contaminated fuel. Based on the above evidence, the superi- or court could properly find that the engine failure was not Keener's fault and that Ursin had breached its express obligation under paragraph 2 to ready the Great Alaskan and to remedy any deficiencies. 3. Termination of the Charter Because of Major Breakdown. Paragraph 5 of the charter agreement defined the parties' duties and liabilities in the event the Great Alaskan suffered a "major breakdown." If the breakdown could not be repaired within 48 hours, and if the breakdown was not Keener's fault, then the charter fee would cease to accrue until repairs were made. Keener was to present to Ursin any expenses it incurred in attempting to repair the breakdown for settlement. If it was established that Keener's negligence caused the breakdown then the charter fee would not cease and Keener would bear any repair expenses. The superior court found that 1) the Great Alaskan was significantly disabled from June 24 through July 8,1984; 2) after July 8, with only one engine running, the processor was unable and unfit to freeze fish as intended; 3) Keener attempted to make repairs and notified Ursin of the breakdowns; and 4) the breakdowns were due to long-term poor maintenance and inherent mechanical failures, not to any improper maintenance or negligence by Keener. The court concluded that the charter fee terminated on July 10, 1984 (48 hours after the engine seizure), that Keener should recover two-thirds of the prepaid charter and insurance fees, and that Ursin was liable for Keener's repair expenses and the damage to fish quality due to inadequate processing. The superior court's findings are amply supported by the record. There is no dispute that the Great Alaskan suffered successive generator and engine failures. The breakdowns began around June 24 and the vessel was without any processing power from June 30 to July 3. For the remainder of the time from June 24 to July 8, the vessel ran only sporadically on half power with one generator and engine. At trial, Sawinski testified that both engines were down and that there was no processing power from June 30 to July 3. Hayden, the generator specialist, stated that when he arrived on July 2, both engines were down and there was no power generation. The only power source during this period was the small auxiliary generator which could not run the processing equipment. With regard to the issue of whether the generator and engine failures constituted a "major breakdown," Samsel, the drafter of paragraph 5, testified: Q. Why don't you define for us, then, what you meant, subjectively, by minor mechanical breakdown? . A. It's not that easy a thing to define. There is [sic] some major pieces of equipment on there and there is [sic] major things that go wrong with them. An engine blows up, that's major if you can't get it running again. The Great Alaskan was unable to process during the four days both generators were out and Keener's fish product was damaged as a result. During the rest of the time the vessel was running on a single engine, it was still not able to process adequately. Various witnesses testified that one engine could not adequately power the vessel's compressors. The seizure of the starboard engine on July 8 meant that Keener was faced with at least another 10 to 14 days of inadequate processing power. This delay was particularly significant given evidence that the red salmon season usually ran from around June 17 to July 20. The undisputed testimony of several witnesses supports the trial court's finding that Keener made substantial efforts over two weeks to repair the engine failures. A specialist was flown out and new generators were purchased and installed. When the starboard engine seized, Keener contacted Ursin and another mechanic was flown out to examine the engine. Keener was then informed that the engine required a major overhaul. There was no evidence that Keener neglected or delayed repair efforts on the engines. The testimony of numerous witnesses, including Ursin representatives, supports the court's findings that Keener notified Ursin of the breakdowns. Finally, as discussed in the previous section, there was substantial evidence that the generator and engine breakdowns were not caused by Keener. Moreover, the superior court found that the charter required Ursin to choose a marine surveyor to establish Keener's negligence. Ursin's choice, Dale Johnson, could not conclude Keener was at fault. Thus, the superior court properly concluded that major breakdowns occurred, terminating the accrual of the charter fee and entitling Keener to recover its charter fees and repair expenses pursuant to Paragraph 5 of the charter agreement. B. ATTORNEY'S FEES. 1. Actual vs. Partial Fees. The charter agreement contained the following provision: Attorneys Fees. In the event that any action is filed in relation to this agreement, the unsuccessful party in the action shall pay to the successful party a reasonable sum for the successful parties [sic] attorney's fees. The trial court found that this provision mandated an award of actual, reasonable fees and awarded Keener $65,024. Ursin claims that the term "reasonable" in the above provision should be given the same interpretation as in Civil Rule 82(a)(1) and that the trial court abused its discretion in awarding full instead of partial fees. It is well established that " '[t]he purpose of Civil Rule 82 in providing for the allowance of attorney's fees is to partially compensate a prevailing party for the costs to which he has been put in the litigation in which he was involved."' Malvo v. J.C. Penney Company, Inc., 512 P.2d 575, 587 (Alaska 1973) quoting Preferred General Agency of Alaska, Inc. v. Raffetto, 391 P.2d 951, 954 (Alaska 1964) (emphasis supplied by Malvo court). But Ursin points to no evidence in the record that the parties intended to place a similar limitation on the contract provision, i.e., that the provision was intended merely as a restatement of the rights the parties already possessed under Rule 82. The trial court awarded fees based on the plain meaning of the contract provision independent of Rule 82. This was proper because, as in Manson-Osberg Company v. State, 552 P.2d 654, 660 (Alaska 1976), the contract provision must prevail over any limitations otherwise imposed by Rule 82. 2. Evidentiary Support for Amount of Fees. Ursin also claims that Keener did not adequately document the amount of attorney's fees requested. Ursin incorrectly states that Keener failed to document the billing rates of, and hours worked by, Keener's attorneys on this case. While the documents originally submitted by Keener in support of its motion for fees listed only a description of work done and a total amount billed to the client, Keener submitted with its reply memorandum in support of its motion an affidavit setting forth the billing rates of and total hours worked by each of Keener's attorneys. Ursin apparently concedes the point since it does not make any attempt to claim that this affidavit is insufficient. In any case, the documentation submitted by Keener was sufficient and the trial court did not abuse its discretion in awarding the amount of attorney's fees it did. State v. Fairbanks North Star Borough Sch. Dist., 621 P.2d 1329, 1335 (Alaska 1981). C. COSTS. Keener correctly argues that Ursin may not now contest the amount of costs awarded since it failed to contest the amount at the superior court level as required by Civil Rule 79(d). A.R.C. Industries, Inc. v. State, 551 P.2d 951, 961 (Alaska 1976). III. CONCLUSION The trial court correctly found that the starboard engine failure constituted a major breakdown entitling Keener to terminate the charter. The trial court's attorney's fees award was proper. Ursin may not now challenge the costs award. AFFIRMED. . Ursin's position that Keener ignored the warnings from Flatt and Everidge about the starboard engine is not supported by the record. Ursin's own employee Beach testified that Keener requested the repair. The trial court likewise found that Keener had requested that work be done on the starboard engine but that Ursin refused.

10409821

Daniel R. DENARDO, Appellant, v. STATE of Alaska, Appellee

Denardo v. State

1987-09-11

No. S-1679

1197

1200

741 P.2d 1197

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Daniel R. DENARDO, Appellant, v. STATE of Alaska, Appellee.

Daniel R. DENARDO, Appellant, v. STATE of Alaska, Appellee. No. S-1679. Supreme Court of Alaska. Sept. 11, 1987. Daniel R. DeNardo, Anchorage, pro se. Susan D. Cox, Asst. Atty. Gen., Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1672

10601

OPINION COMPTON, Justice. Daniel R. DeNardo claims that the Alaska Division of Elections (Division) improperly refused to place his name on the ballot for the 1986 gubernatorial election. The division based its action on DeNardo's failure to comply with then 6 AAC 25.160 (Eff. 12/19/85), which required independent gubernatorial candidates to submit nominating petitions signed by qualified voters equal in number to at least one percent of those voting in the previous general election. DeNardo asserts that the regulation was invalid. The superior court sustained the actions of the division. We affirm. I. VALIDITY OF 6 AAC 25.160. Alaska Administrative Code Title 6, Section 25.160, was adopted pursuant to authority delegated to the director of elections by AS 15.15.010. That statute provides that the director "may issue regulations under the Administrative Procedure Act . necessary for the administration of state elections." DeNardo does not claim that the director failed in any way to comply with the provisions of Alaska's Administrative Procedure Act (APA) in promulgating 6 AAC 25.160. Nor does DeNardo challenge the substance of the regulation or the legislature's power to enact such a rule. Instead, DeNardo claims that the division had no power "to make election laws." DeNardo argues that 6 AAC 25.160 was a void attempt by the division to amend former AS 15.25.160, which this court held unconstitutional in Vogler v. Miller, 651 P.2d 1, 5-6 (Alaska 1982) (Vogler I). AS 15.25.160 provided that a gubernatorial candidate who did not represent a political party had to be nominated by petition signed by qualified voters equal in number to at least three percent of the number of votes cast in the preceding general election. Ch. 83, § 5.53, SLA I960; ch. 100, § 138, SLA 1980; see also Vogler I, 651 P.2d at 2. In Vogler I, we recognized as legitimate the state's justifications for the statute, including the desire to eliminate voter confusion that would result from having a multitude of candidates on the ballot. 651 P.2d at 4. We nevertheless found that none of these explanations justified the increase from the equivalent of a one percent to a three percent signature requirement. Since the state failed to show that a one percent requirement would be any less effective in achieving the purported goals of the statute, we found that the state had not shown the compelling interest required to save the three percent provision. Id. at 5-6. The statute was not amended to comport with the one percent rule implicitly approved in Vogler I until June 6, 1986, five days after the filing deadline for nonparty candidates' nomination petitions for the 1986 gubernatorial election. Chapter 85, § 46, SLA 1986; AS 15.25.160. When it became clear that the legislature would not act in time, the division, of elections promulgated 6 AAC 25.160 to govern the 1986 election. DeNardo relies on State v. Marshall, 633 P.2d 227, 233-34 n. 19 (Alaska 1981,) in support of his argument that the division's adoption of 6 AAC 25.160 was in effect an attempt to amend an unconstitutional statute. This reliance is misplaced. It is clear, as DeNardo argues, that agency rules cannot amend a statute. See id. But, contrary to DeNardo's apparent position, the fact that the legislature has at some point enacted legislation dealing with a particular topic does not forever foreclose the legislature from delegating authority to an agency to make rules affecting the same topic. This court has soundly rejected such an argument. In Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971), we stated: When administrative rule-making is based upon clear authority from the legislature to formulate policy in the adoption of regulations, the rule-making activity takes on a quasi-legislative aspect. We have held that, under proper standards, such delegations of legislative power to administrative agencies are constitutional. Boehl v. Sabre Jet Room, Inc., 349 P.2d 585 (Alaska 1960). Id. 489 P.2d at 909. In Boehl, the following language appears: [Provision is made [in the Alaska Constitution] for creation by the legislature of regulatory agencies that are not under the supervision of the executive. Alaska Constitution, Art. Ill, § 22, 24, 26. Such agencies would obviously have the function of exercising authority and control in places where the legislature has decided not to exercise all the authority and control itself. This would be a delegation of legislative power and the constitution provides for it. Id. 349 P.2d at 588 (footnote integrated into text). The three percent provision of former AS 15.25.160 became null and void upon this court's decision in Vogler I, 651 P.2d at 5-6. The division's subsequent regulatory enactments could not "amend" a void statute. Rather, the division stepped in to address a question regarding which the legislature implicitly decided not to exercise all of its authority and control. Thus DeNardo's argument that the division generally has no power to make election laws is without merit. The legislature is constitutionally empowered to delegate legislative authority to regulatory agencies under certain circumstances. The question remains whether the specific regulation actually adopted by the division is valid. Resolution of this question involves a two-part inquiry: first, is the regulation consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency, and second, is the regulation reasonable and not arbitrary. Kelly, 486 P.2d at 911. The relevant delegating statute provides: The director [of elections] shall provide general administrative supervision over the conduct of state elections, and may issue regulations under the Administrative Procedure Act . necessary for the administration of state elections. AS 15.15.010. The delegation of authority is further limited by the APA: If, by express or implied terms of a statute, a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent with the statute and reasonably necessary to carry out the purpose of the statute. AS 44.62.030. Thus, 6 AAC 25.160 was valid if it was consistent with relevant statutes and reasonably necessary for the administration of state elections. After Vo-gler I, there was no effective statute governing the number of signatures required for a nominating petition. Moreover, the legislature had previously expressed its desire to place some limitation on access to the gubernatorial ballot by enacting former AS 15.25.160. We recognized this as a legitimate concern in noting "[t]hat 'laundry list' ballots discourage voter participation and confuse and frustrate those who do participate." Vogler I, 651 P.2d at 5, quoting Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 1319, 39 L.Ed.2d 702, 708 (1974). In addition, the legislature has confirmed its continued approval of the policy of limiting access to the ballot by enacting the new AS 15.25.160, which is virtually identical to 6 AAC 25.160. Thus, 6 AAC 25.160 did not conflict with any statute in effect and was consistent with the expressed legislative intent. Moreover, by implicitly approving a one percent voter signature requirement in Vo-gler I, we have already found the rule to be neither unreasonable nor arbitrary. Vo-gler I, 651 P.2d at 5-6. 6 AAC 25.160 was validly enacted. De-Nardo failed to comply therewith and the division properly rejected his nominating petition. II. ISSUES RELATING TO ACCESS OF WRITE-IN CANDIDATES TO VOTERS. The superior court concluded that issues relating to the propriety of the division's alleged refusal to include write-in candidates in voter information pamphlets were not ripe for decision. These issues were dismissed without prejudice. At the time of the hearing on DeNardo's "writ of mandamus," the pamphlet deadlines were still months away. Apparently, the only pertinent information before the superior court was DeNar-do's affidavit which stated: "Unofficially through the Division of Elections, Mr. De-Nardo was informed that a write-in candidate would not have access to the election pamphlet." In its oral decision, the superi- or court deferred the issue of write-in candidate access to the voter information pamphlet, and invited each side to brief the question. DeNardo chose to appeal instead, arguing that the dismissal without prejudice was error because the access issue was "inextricably intertwined" with the nomination petition question. It cannot be determined from the record, however, whether DeNardo in fact attempted to wage a write-in campaign. It is thus impossible to discern the factual posture of this claim. The superior court wisely recognized this claim as unripe for judicial determination and declined to address it. We do likewise. III. CONCLUSION. The division of elections acted within the scope of the authority delegated to it by the legislature when it enacted 6 AAC 25.-160. DeNardo failed to comply with its provisions and the division properly rejected his petition. The superior court correctly found that DeNardo's claims relating to his write-in candidacy were not ripe for review. The superior court's decision is AFFIRMED. . Indeed, the legislature has since enacted a statutory one percent signature requirement. AS 15.25.160. . "Political party is defined as an organized group of voters that had polled a certain percentage of votes in the preceding gubernatorial election. Prior to 1983, the statutory percentage was 10%. This was found to be an unconstitutional restriction on access to the ballot. Vogler v. Miller, 660 P.2d 1192, 1195-96 (Alaska 1983) (Vogler II). In 1986, the percentage was lowered to 3%. Ch. 85, § 34, SLA 1986. .The statute had previously required 1000 signatures, slightly less than 1% of the votes cast in 1978. Vogler I, 651 P.2d at 5 n. 10. . This aspect of review insures that the agency has not exceeded the power delegated by the legislature. Kelly, 486 P.2d at 911. . The division also argues that DeNardo's claim is moot. In view of our disposition regarding the validity of the regulation, we do not address the mootness issue.

10563949

STATE of Alaska, Appellant, v. Carl ALMEN, Appellee

State v. Almen

1971-02-11

No. 1301

695

697

480 P.2d 695

480

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:43.589564+00:00

CAP

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

STATE of Alaska, Appellant, v. Carl ALMEN, Appellee.

STATE of Alaska, Appellant, v. Carl ALMEN, Appellee. No. 1301. Supreme Court of Alaska. Feb. 11, 1971. G. Kent Edwards, Atty. Gen., Juneau, B. Richard Edwards, Asst. Atty. Gen., Anchorage, for appellant. Dickerson Regan, Alaska Legal Services, Juneau, for appellee. Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

1168

7182

OPINION ERWIN, Justice. The claim of Carl Almen, a disabled, unemployed carpenter, for additional unemployment benefits under AS 23.20.352 was denied by the Acting Commissioner of Labor. The Superior Court, First Judicial District, reversed the Commissioner and directed that benefits be awarded. From that decision the State appeals. The pertinent facts were presented to the Superior Court by stipulation, and are not in dispute here. During the week ending June 24, 1967, appellee was unemployed but not disabled. He claimed, and was paid, benefits for that week. On June 28, while still unemployed, he suffered a heart attack, as a result of which he has been unable to work since that date. Because his illness occurred during an uninterrupted period of unemployment following a week for which he had filed a com-pensable claim, Almen continued to be eligible for benefits in spite of his disability. AS 23.20.380. He remained un employed, received no offers of work, and continued to draw benefits until August 14, 1967, on which date he exhausted the amount of benefits available to him under AS 23.20.350. On October 8, 1967, AS 23.20.352 became effective, providing additional benefits to those who had exhausted their entitlement under former law. Appellee filed his application under the new statute for additional benefits beginning October 29, 1967. It is this application, denied by the Acting Commissioner on January 18, 1968, which is the subject of the case at bar. AS 23.20.352(c) provides: Except where inconsistent with the provisions of this section, the terms and conditions of this chapter shall apply to claims filed under this section for additional benefits and to the payment of additional benefits. The position taken by the State of Alaska is somewhat complicated by the required reference to several portions of the original and extended benefits statutes. The state's argument is that because there was a gap in time between the exhaustion of original coverage and the effective date of the extended coverage statute, Almen cannot qualify for extended coverage. However, because of the obvious intention expressed by the legislature in AS 23.-20.005(b), incorporated into the extended coverage statute, AS 23.20.352, the latter should be liberally construed to promote the purposes of the act. We hold that the fact that there was a break between the expiration of Almen's initial benefits entitlement and the time for which extended benefits are claimed is not significant. The extended coverage entitlement should be continued until such time as the entitlement would have been discontinued because of the availability of work or until the benefits expired. Since the stipulated facts of this case demonstrate that no work was available, then appellee, Almen, was in fact entitled to benefits as set forth in the extended coverage statute. The decision of the Superior Court is hereby affirmed. . AS 23.20.352(a) states: The legislature, in keeping with the purpose and policy of the Alaska Employment Security Act, notwithstanding the provisions of § 350(e) and 520(4) of this chapter, declares that additional benefits shall be paid to individuals in Alaska under conditions set out in this section. . AS 23.20.380 provides in relevant part: 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 (1) he was not able to work or was not available for suitable work for the week; an insured worker may not be considered ineligible for receipt of unemployment benefits for a week because of failure to comply with the provisions of this subsection if (A) he is unable to work because of an illness or disability; or * # ⅜ (C) the condition described in (A) of this subsection occurs during an uninterrupted period of unemployment following a week for which he has filed a compensable claim and no work has been offered him for a part of that week which would have been suitable before the beginning of the illness, or disability; # ⅜ * . At the relevant time AS 23.20.350(a), subsequently amended in 1969, provided: To qualify for benefits an individual shali have earned wages in his base period totaling not less than one and one-fourth times the aggregate amount of wages earned by him in that calendar quarter of his base period in which he earned the highest amount of wages, and all his wages for the base period must equal not less than the minimum amount required for benefits under (b) of this section. . AS 23.20.375; AS 23.20.380(1) (C) ; AS 23.20.352(a), (b), (c). . The state interprets AS 23.20.352 to exclude Almen since his illness or disability did not occur during an uninterrupted period of unemployment following the week for which he filed a compensable "additional benefits claim" but rather occurred during the original benefit period. .AS 23.20.005(b) states: The legislature declares its intention to provide for carrying out the purposes of this chapter in cooperation with the appropriate agencies of other states and the federal government, as part of a nationwide employment security program, and particularly to provide for meeting the requirements of Title III of the Federal Social Security Act, the requirements of § 3303 and 3304 of the Federal Unemployment Tax Act (Chapter 23, subtitle C, of Internal Revenue Code), and the Act of Congress approved June 6, 1933, entitled "An Act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system, and for other purposes" (cited in this chapter as the Wagner-Peyser Act), and Title IV of the Act of Congress approved June 22, 1944, each as amended, in order to obtain for this state and its citizens the grants and privileges available under the federal Act. Doubt as to the proper construction of a provision of this chapter shall be resolved in favor of conformity with the requirements of the federal Act. . We decline to adopt a statutory interpretation urged by the State which would engraft new requirements on entitlement for extended benefits which were not required for original benefits in the absence of clear legislative intent in view of the announced purposes of these statutes. See Anderson v. Indus. Comm'n, 447 P.2d 221, 223 (Colo.1968); Pickman v. Weltmer, 191 Kan. 543, 382 P.2d 298, 304 (1963); Parsons v. Employment Security Comm'n, 71 N.M. 405, 379 P.2d 57, 60 (1963); Johnson v. Bd. of Review of Indus. Comm'n, 7 Utah 2d 113, 320 P.2d 315, 318 (1958). We also note the liberal extension policy announced in federal extended unemployed benefits which must be administered by the Alaska Employment Security Division. "Federal-State Extended Unemployment Compensation Act of 1970," Pub.L. No. 91-373, 84 Stat. 695 (1970).

10435415

Floyd WORTHAM, Appellant, v. STATE of Alaska, Appellee

Wortham v. State

1982-03-04

No. 5459

223

225

641 P.2d 223

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

Before COATS and SINGLETON, JJ., and MADSEN, Superior Court Judge.

Floyd WORTHAM, Appellant, v. STATE of Alaska, Appellee.

Floyd WORTHAM, Appellant, v. STATE of Alaska, Appellee. No. 5459. Court of Appeals of Alaska. March 4, 1982. Robert L. Manley, and Joseph R. D. Loescher, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellant. Rhonda F. Butterfield, Asst. Atty. Gen., Anchorage, Dean J. Guaneli, Asst. Atty. Gen., Daniel W. Hickey, Chief Prosecutor, and Wilson L. Condon, Atty. Gen., Juneau, for appellant. Before COATS and SINGLETON, JJ., and MADSEN, Superior Court Judge. Roy H. Madsen, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

1212

7446

OPINION SINGLETON, Judge. This is an appeal from a conviction of two counts of perjury, former AS 11.30.-010(a), following a plea of no contest by Wortham entered pursuant to an agreement with the court and prosecutor that he could appeal the denial of his motion to suppress certain evidence. The prosecutor specifically stipulated that a ruling to suppress the evidence would terminate the case. Consequently, we have jurisdiction to consider the claim. Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978); Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Wortham was tried and convicted of the charge of sale of cocaine. See Wortham v. State, 617 P.2d 510 (Alaska 1980). He testified in his own defense, and during the course of that testimony, he made statements which resulted in his indictment for perjury. The state notified Wortham that, at his perjury trial, it intended to use the transcript of a tape recording made of a conversation between Wortham and an undercover police agent. This recording had been made without Wortham's knowledge. At his trial for sale of cocaine, Wortham had successfully obtained suppression of that recording based upon State v. Glass, 583 P.2d 872 (Alaska 1978). Relying on this ruling, Wortham again sought to have the same evidence suppressed in the perjury prosecution, but the trial court, in apparent reliance on Alaska Rule of Evidence 412(2), denied suppression. This appeal followed. The sole issue on appeal, therefore, concerns the applicability of Alaska Rule of Evidence 412(2) to this case. Specifically, we must determine whether the evidence obtained which was properly suppressed in the cocaine case must also be suppressed in the perjury case. Under the rule, this determination turns upon whether the evidence was obtained in "substantial violation" of the defendant's rights. Unfortunately, we are unable to decide this question because the record is inadequate for our determination. We are an appellate court, and our obligation is to review findings of fact and law made by the superior and the district courts. The parties have not specified for inclusion in the record the findings of fact and conclusions of law, if any, made by the trial judge in denying Wortham's motion to suppress the evidence in the perjury prosecution. While we have before us a transcript of the suppression hearing conducted in the cocaine prosecution, we note that the trial judge there understandably did not address the perjury issue or make any findings or conclusions regarding the "substantiality" of the violation. It is true that the participants to the taping of the conversation were called as witnesses and were interrogated, but it is not clear that this was done with an eye toward determining the facts necessary to establish a record for purposes of Rule 412(2). However, even if it were, this court is not authorized to make either findings of fact or conclusions of law at the first instance. This matter is, therefore, remanded to the superior court to conduct such proceedings as may be necessary to furnish findings of fact and conclusions of law explaining its decision. While we do not necessarily view the case of State v. Fruitt, 35 N.C.App. 177, 241 S.E.2d 125 (1978), as controlling, we would appreciate specific determinations regarding the four factor test advanced in that case, i.e., (a) the importance of the particular interest violated; (b) the extent of the deviation from lawful conduct; (c) the extent to which the violation was wilful; and (d) the extent to which exclusion will tend to deter future violations. Compare State v. Sears, 553 P.2d 907 (Alaska 1976). We would also be interested in knowing what standard, if any, the trial court applied in determining that the seizure of evidence here was not "in substantial violation" of defendant's rights. This matter is REMANDED to the trial court for further proceedings consistent with this opinion. We will retain jurisdiction pending completion of those proceedings. BRYNER, C. J., not participating. . The state argues vigorously that Glass was wrongly decided and should be overruled. We believe we are required to follow the Glass opinion. . Wortham raises two issues which can be rapidly resolved. First, he contends that Alaska Rule of Evidence 412(2), which permits evidence illegally obtained to be used under certain circumstances in perjury prosecutions, is unavailable because it is limited to evidence obtained in violation of the fourth amendment to the United States Constitution and its Alaska counterpart, art. 1, § 14 of the state constitution. Here, Wortham contends seizure of the evidence violated Alaska Const, art. 1, § 22, providing an independent ground for suppression and taking the case out from under Evidence Rule 412. We see nothing in the text of the rule suggesting that evidence obtained in violation of art. 1, § 22 should be treated any differently than that obtained in violation of art. 1, § 14. In fact, a review of Alaska Supreme Court decisions reflects no intent to create an independent ground of exclusion. See, e.g., State v. Glass, 583 P.2d 872 (Alaska 1978). A close reading of the cases establishes that suppression is always predicated on art. 1, § 14, and that § 22 is merely used as a justification for giving § 14 a liberal interpretation. This is clear from the supreme court's utiliza tion of Justice Harlan's two-pronged test, Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring) (interpreting the fourth amendment to the United States Constitution), to determine the propriety of exclusion of evidence under both art. 1, § 14 and § 22 of our state constitution. We therefore construe Alaska Rule of Evidence 412(2) as applying to evidence illegally obtained regardless of the basis for determining that it was obtained illegally. Defendant argues next that suppression of the evidence in the cocaine prosecution should be treated as res judicata or at least should collaterally estop the state from using the evidence in the perjury prosecution. We disagree. Alaska Rule of Evidence 412(2) provides for disparate treatment in the two situations. There is no suggestion that 412(2) was considered at the first suppression hearing and therefore there is no basis for invoking res judicata or collateral estoppel. Therefore, it is not necessary for us to resolve the conflict which exists between those cases which hold that these doctrines do attach to rulings in suppression hearings and those cases which hold that they do not. Compare Commonwealth v. Scala, 8 Mass.App. 202, 392 N.E.2d 869 (1979), aff'd, 380 Mass. 500, 404 N.E.2d 83 (1980) (denying collateral estoppel effect to an earlier suppression) with State v. Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977) (allowing it).

10435379

NEW YORK LIFE INSURANCE COMPANY, Appellant, v. Marian L. ROGERS, Appellee

New York Life Insurance Co. v. Rogers

1982-03-05

No. 5111

218

223

641 P.2d 218

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS, and COMPTON, JJ.

NEW YORK LIFE INSURANCE COMPANY, Appellant, v. Marian L. ROGERS, Appellee.

NEW YORK LIFE INSURANCE COMPANY, Appellant, v. Marian L. ROGERS, Appellee. No. 5111. Supreme Court of State of Alaska. March 5, 1982. Kenneth P. Jacobus and James F. Klasen, Hughes, Thorsness, Gantz, Powell & Brun-din, Anchorage, for appellant. Stephen Hillard, Graham & James, Anchorage, for appellee. Before RABINOWITZ, C.J., and CON-NOR, BURKE, MATTHEWS, and COMPTON, JJ.

3607

21799

OPINION RABINOWITZ, Chief Justice. This appeal arises out of New York Life Insurance Company's refusal to make a $50,000 payment, under an accidental death policy, to Marian L. Rogers as the beneficiary. Resolution of the appeal turns upon the proper interpretation of the policy's "aviation exclusion clause." Appellee Marian Rogers is the beneficiary of an insurance policy that was issued by New York Life Insurance Company on the life of Dr. William S. Stover. New York Life paid the $50,000 face amount of the policy on proof of Dr. Stover's death; it refused, however, to pay the additional $50,000 demanded by Rogers under the policy's accidental death provision. Rogers subsequently brought suit seeking the $50,-000 claimed under the policy. Both parties moved for summary judgment. In the memoranda accompanying those motions, each party alleged that the other bore the burden of proving the circumstances of Dr. Stover's death; these contentions have not been pursued on appeal. Each party also took the position that its legal theory required no resolution of factual issues, but argued that the opposing legal theory, if adopted, would require that factual disputes be resolved. The superior court judge ruled from the bench that Rogers was entitled to partial summary judgment. The circumstances surrounding Dr. Sto-ver's death are not known and can only be filled in inferentially from the few details that are available. At about 4:00 a. m. on April 15, 1978, Dr. Stover and two of his children left Anchorage in his Cessna 170B airplane, intending to spend the day fishing in Homer. Dr. Stover was an experienced pilot but was not certified for instrument flight. The required annual inspection of his aircraft had not yet been performed for the year 1978, and the plane was not equipped with flotation gear. Weather conditions in Anchorage and Kenai on the morning of April 15, 1978, were such as to present extremely hazardous flying conditions. Shortly after takeoff, Dr. Stover began trying to contact airport ground control on the plane's radio. Over the course of the next twenty minutes, some ten separate transmissions from Dr. Stover were received by ground control personnel in Anchorage and Kenai, but numerous attempts to return the calls were unsuccessful, presumably because the radio receiver in his plane was malfunctioning. Statements of the persons who heard Dr. Stover's radio transmissions indicate that he did not appear to be having difficulty at that time. After these unsuccessful attempts to make contact, no further communication was received from Dr. Stover. When Dr. Stover was reported missing at approximately 5:45 p. m. on that day, an intensive search was initiated. The search was actively pursued for ten days; 425 sorties over the Kenai Peninsula, Cook Inlet, and the Resurrection Pass area, flown by both military and civilian aircraft, failed to turn up any trace of the missing plane. Because weather conditions on the morning of April 15 were likely to have forced Dr. Stover to select an air route primarily over Cook Inlet, New York Life concludes that Dr. Stover's plane must have crashed and sunk in the waters of the Inlet. Further support for this conclusion is provided by the fact that Dr. Stover's body was recovered from the Inlet on June 19, 1978, in a condition that was consistent with its having been immersed in cold water for over two months. The body did not evidence any sign of the kind of injury that would have been expected had a violent impact occurred; New York Life argues that this fact also supports its conclusion in that a landing on water would not have produced the violent impact associated with crashes on land. New York Life's claim is that the only reasonable inference to be drawn from these facts is that Dr. Stover died from exposure or by drowning, either of which may have been accelerated by a soft tissue injury, shortly after his plane landed in Cook Inlet. As indicated at the outset, we think that any suggested evidentiary disputes are of no consequence and that our decision rests entirely upon the proper interpretation of the "aviation exclusion clause." Rogers' theory, simply put, is that the policy can be reasonably interpreted to exclude "only those deaths and injuries which occurred in the air or upon direct impact, but not those which occurred subsequent to the termination of the flight." New York Life's position is that all deaths resulting from "those risks associated with aviation" are excluded. Since the facts as presented by both parties indicate that Dr. Stover's death occurred subsequent to the termination of the flight, the disputes as to whether death was caused by drowning or hypothermia, and whether a soft tissue injury may have occurred, are largely irrelevant. The provision of the life insurance policy upon which Rogers bases her claim reads as follows: Subject to the terms and conditions of the policy and these Accidental Death Benefit provisions, the Company will pay the Accidental Death Benefit, as part of the policy's death benefit proceeds, upon receipt of due proof that the Insured's death resulted directly, and independently of all other causes, from accidental bodily injury . New York Life does not question the applicability of this provision. Its refusal to pay the accidental death benefit was based, instead, on the following aviation exclusion clause: However, the Accidental Death Benefit will not be payable if death occurs before the Insured's fifth birthday or results from . (c) travel or flight in any kind of air craft (including falling or otherwise descending from or with such aircraft in flight) while the Insured is participating in aviation training in such aircraft, or is a pilot, officer or other member of the crew of such aircraft or has any duties aboard the aircraft while it is in flight if such duties relate in any way to the aircraft, its operation or equipment, or to any purpose of the flight . The parties to this appeal have adopted radically differing positions regarding the proper interpretation of this aviation exclusion clause. New York Life's position is that the words used in its exclusion clause, "taken in their plain, ordinary and popular sense, . clearly exclude from coverage such risks as death by drowning or hypothermia as a result of a plane crash in the ocean." It asserts that the courts that have considered the problem have been "virtually uniform" in adopting that interpretation. Our review of the applicable decisions and law supports that assertion. The analysis applied by the Fourth Circuit in Order of United Commercial Travelers v. King, 161 F.2d 108, 109 (4th Cir. 1947), is typical: In undertaking an aerial flight over the ocean in a land-based plane, man must reckon with the perils of the sea which are as imminent and real as the unrelenting force of gravity. Just as flight over the land brings forth the danger of violent collision with the earth, we have the dangers of the sea in over-water flight. That men may remain alive for varying periods of time before succumbing does not change the picture. We think it a rather violent fiction to say that death, under such circumstances, comes from accidental drowning. Common knowledge and experience fairly shout of the dangers of shock, exposure and drowning when a flight is taken over water in the winter time in a land based plane. Numerous courts have relied upon this passage from King in interpreting policy exclusions similar to the one in issue here. See, e.g., Prudential Insurance Co. of America v. Howe, 232 Ga. 1, 205 S.E.2d 263, 264 (1974); Goforth v. Franklin Life Insurance Co., 202 Kan. 413, 449 P.2d 477, 482 (1969); Howard v. Equitable Life Assurance Society of the United States, 360 Mass. 424, 274 N.E.2d 819, 821 (1971). The overwhelming majority of cases in which this issue has been presented have reached a similar result. Rogers insists that the aviation exclusion clause under consideration here is ambiguous and that "[o]ne reasonable interpretation of this language is that it excludes from coverage only a death which occurred while the insured was acting as a pilot, and which occurred in the time period between the liftoff and the touchdown of the plane." Primary reliance is placed on the asserted ambiguity of the policy's exclusion of any death which "results from" the insured's participation in the flying of a plane. Rogers argues , that the narrowest reasonable interpretation of the policy's causation language must be adopted. Applying such an interpretation to the facts of this case renders the exclusion inapplicable, she argues, since "Dr. Stover's death was not the 'result' of travel or flight . but [resulted] from the post-flight peril of hypothermia (or arguendo from drowning)." In our opinion the cases cited by Rogers do not support such a restrictive reading of the policy's aviation exclusion clause. Chambers v. Kansas City Life Insurance Co., 156 Cal.App.2d 265, 319 P.2d 387 (1957), required interpretation of an exclusion clause similar to the one at issue here. That case involved a landing in the California desert; the insured was apparently not injured in the landing, but died of "exposure, dehydration, [and] exhaustion" after walking twenty miles over the course of two days. In affirming a jury verdict in favor of the insured's beneficiary, the court noted that the clause could reasonably be read "to indicate an intention that the exclusion provided for would end when the insured had safely descended from the plane." Id. 319 P.2d at 389. It concluded: [I]t does not necessarily follow that this exclusion provision was intended to apply. where a safe landing had been made and where death occurred a couple of days later and miles away from the airplane, as a result of other circumstances and conditions. Id. The court's view was that the forced desert landing was too remote a cause of the insured's death to justify exclusion from coverage. Most significantly, the cases involving a forced landing in a body of water were carefully distinguished: It does not necessarily follow that the same rule should be applied here as that applicable where a plane lands on the ocean where the drowning may well be considered an indirect, if not a direct, result of the flight. Where a plane goes down at sea a safe descent is often impossible, and drowning which follows is in a practical sense a part of the descent. In a forced landing on terra firma within this country a very different situation may well appear. Id. 319 P.2d at 389. We think this distinction significantly undermines Rogers' reliance on the Chambers case. Rogers further argues that if the insurer had intended to exclude death occurring after termination of a flight from coverage, it was obligated to use express language to that effect. See INA Life Insurance Co. v. Brundin, 533 P.2d 236, 242-43 (Alaska 1975). This argument adds nothing to the foregoing, in that it begs the central question presented by this appeal — whether "results from" can be reasonably interpreted to refer only to deaths occurring at, or prior to, impact. It also ignores the fact that the language contained in New York Life's exclusion tracks the statutory language permitting such exclusions. AS 21.45.-250(a)(2)(B) specifically authorizes exclusion from life insurance coverage of a death that occurs "as a result of aviation or any air travel or flight." It is clear that any exclusion from coverage broader than that allowed by statute would be illegal, AS 21.45.-250(a)(2), and that New York Life was precluded from using language broader than that it selected. We therefore find Rogers' argument unpersuasive. Given the persuasive case law from the other jurisdictions, we agree with New York Life's contention that the policy provision in issue here should be interpreted to exclude from coverage a death by drowning that results from an emergency landing in a body of water. The question whether such a death "results from" travel in an airplane must be answered by applying a reasonable interpretation of that phrase to the facts presented. We hold that under any reasonable lay interpretation of the insurance policy in question, Dr. Stover's death must be excluded from the accidental death coverage because it "resulted] from . travel or flight in . . [an] aircraft . . while the Insured . [was] a pilot." Because the superior court erred in accepting Rogers' interpretation of the life insurance policy provisions upon which she bases her claim, the superior court's entry of summary judgment in her favor must be reversed. Since the case presents no triable issue of fact, the proper interpretation of the aviation exclusion clause in question requires that summary judgment be entered in favor of New York Life. REVERSED. . Rogers had previously been married to Dr. William Stover, the insured. . In seeking summary disposition of the case, Rogers abandoned her claim for punitive damages. Her motion was therefore one for partial summary judgment only, and the superior court's order entitled her to the $50,000 claimed under the policy but no damages beyond that. . The autopsy report reads in part: The remains are those of a Caucasian male who has undergone severe post mortem decomposition and immersion change. There are multifocal areas of predation by aquatic animal life. The skin of both extremities, back and head has been multifocally attacked by animal life. Both arms have the bones bared of flesh. The chest has an area of intact Caucasian skin over the midline of the sternal region measuring up to 2 cm. in diameter. Intact Caucasian skin is also identified in the groin and perineal region. The remains have a pair of dark knit stockings, shreds of thermal knit long underwear, cotton knit briefs and corduroy type pants. Appropriate samples are saved from each of these clothing materials. The upper trunk is not covered by a garment. There is no external sign of injury or violence. Dr. Propst, the pathologist who performed the autopsy, stated that he believed the body "stayed in the water the entire time." This opinion was based on the "severe degree of [immersion] change . coupled with a lack of . external environmental kind of changes." Dr. Propst was also of the opinion that "[i]t wasn't until the Cook Inlet waters got into June that the waters got warm enough for the post-mortum bacteria to form enough gas to float the body to subsurface or near the surface," and agreed that it was possible that "the body was on the bottom of the Inlet until maybe a week or so before it was found." The body was discovered entangled in the branches of a tree that had floated against a drilling rig support tower in Cook Inlet near Homer. .Rogers insists that a large part of the evidence upon which the above statement of facts is based was not properly before the superior court. Her position is: There is only one essential material fact in this case: the immediate cause of Dr. Sto-ver's death was 'probable hypothermia.' The actual events surrounding that immediate cause of death are completely and totally unknown. In order to avoid liability, the defendant has attempted to fill this factual void by spinning a tale: Dr. Stover's plane crashed into the waters of Cook Inlet, where he inevitably perished within a very few minutes in the cold waters. An equally fanciful tale would be that Dr. Stover's plane landed in the waters of Cook Inlet just offshore. Dr. Stover swam safely to shore, Then, in an attempt to save his children, Dr. Stover swam back out to where the plane had been and eventually succumbed to hypothermia. One could also speculate that Dr. Stover survived an as yet undiscovered landing of the plane on the Kenai Peninsula. He thereafter attempted to cross a river on a tree and, due to the river current, was swept into the Cook Inlet. Although it is true that presentation of some of New York Life's evidence at oral argument on the summary judgment motion was procedurally irregular, Rogers' assertion that New York Life "seeks to replace fact with fantasy" is unfounded. . Rogers has also stated her theory in the following manner: "[Ojnce the insured got out of the plane uninjured, any injuries incurred after that point in time did not 'result from . travel or flight in any kind of aircraft . while the insured [was] a pilot.' " . After summary judgment was entered against it, New York Life, asserting that it had raised a triable issue of fact, moved for reconsideration. This motion was denied. . This court has held that an insurance policy must be construed so as to "provide the coverage which a layperson would have reasonably expected, given a lay interpretation of the policy language." Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 65-66 (Alaska 1977). See also, United States Fire Ins. Co. v. Colver, 600 P.2d 1, 3 (Alaska 1979); Hahn v. Alaska Title Guar. Co., 557 P.2d 143, 145 n.5 (Alaska 1976); Continental Ins. Co. v. Bussell, 498 P.2d 706, 710 (Alaska 1972). . See Annot., 62 A.L.R.3d 1243, 1250-59 (1975). . Rogers also asserts that the phrase "travel or flight" is ambiguous and that the reference to "falling or otherwise descending from or with such aircraft in flight" requires coverage for any death that occurs after impact. Inasmuch as this argument ignores the policy's clear statement that any death that "results from" such "travel or flight . (including falling or otherwise descending .)," we think it should be summarily rejected. Likewise, we think the attempt to limit the scope of the exclusion to death occurring "while the Insured . is a pilot" is devoid of merit: any death that "results from" travel in a plane piloted by the insured is clearly excluded. .That provision excluded life insurance coverage "[i]f the insured shall die as a result, directly or indirectly, of service, travel or flight in any species of aircraft, or as a result of descending therefrom or therewith." Chambers v. Kansas City Life Ins. Co., 156 Cal. App.2d 265, 319 P.2d 387 (1957). . Security Mutual Life Ins. Co. v. Hollingsworth, 459 P.2d 592 (Okl.1969), is somewhat more to the point. It, like Chambers, involved an aviation exclusion to life insurance coverage that was similar to the one under consideration. In Hollingsworth, the insured was a passenger in a small plane that crash-landed, without causing injury to the occupants, in a lake approximately two hundred yards from shore. Although two of his three companions managed to swim safely to shore, the insured drowned, apparently because he had become entangled in a set fishing line. On appeal from a jury verdict finding the insurer liable, the court found on these facts that "not all reasonable men would agree the act prohibited by the exclusion clause had any causative connection . with insured's death." Id. at 599. Although McDaniel v. Standard Accident Insurance Co., 221 F.2d 171 (7th Cir. 1955), relied upon by Rogers, is closer to the present case on its facts, the language of the aviation exclusion clause in that case differs substantially enough from that at issue here to render McDaniel inapposite. Further, the Seventh Circuit's reasoning could render the exclusion inoperable in most cases involving water landings. We think it unreasonable to enforce an exclusion in the case of an aviator who expires from impact-related injuries shortly after a land crash but to refuse enforcement when an aviator drowns as a direct result of a crash in a body of water. . Assuming, as New York Life argues, that Dr. Stover's death from hypothermia or drowning is excluded from coverage if it "resulted from" his flight, the only question to be determined is whether these facts place the death beyond the scope of a reasonable lay interpretation of the policy's provisions. In other words, given New York Life's interpretation, summary judgment in its favor is appropriate unless reasonable minds could conclude that a survival period of five or six hours, perhaps sustained by clinging to a floating tree, would indicate that death did not "result from" the forced landing in Cook Inlet. Reasonable minds could not reach that conclusion, and several courts have so held. In King, the victim was not injured in the crash and survived, floating in a life jacket, for at least two and a half hours; and the court held as a matter of law that death "resulted from" the crash. Order of United Commercial Travelers v. King, 161 F.2d 108, 108-10 (4th Cir. 1947). Summary judgment in favor of the insurer was affirmed, on the same ground, in Goforth; in that case the victim's body was never located. Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P.2d 477 (1969). In Prudential Ins. Co. of America v. Howe, 232 Ga. 1, 205 S.E.2d 263 (1974), summary judgment for the insurer on the same ground was affirmed when the victim was known to have survived for at least six hours. See also Elliott v. Massachusetts Mutual Life Ins. Co., 388 F.2d 362 (5th Cir. 1968); Howard v. Equitable Life Assurance Society, 360 Mass. 424, 274 N.E.2d 819 (1971). . We have reviewed Rogers' arguments concerning New York Life's noncompliance with Civil Rules 56 and 77 and find them without merit. Even assuming procedural irregularities occurred, in the context of this case any failure to comply with our Rules of Civil Procedure was harmless error.

10403385

Debra Gorrell JULSEN, Appellant, Cross-Appellee, v. Erick Harold JULSEN, Appellee, Cross-Appellant

Julsen v. Julsen

1987-08-14

Nos. S-1523, S-1696

642

649

741 P.2d 642

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Debra Gorrell JULSEN, Appellant, Cross-Appellee, v. Erick Harold JULSEN, Appellee, Cross-Appellant.

Debra Gorrell JULSEN, Appellant, Cross-Appellee, v. Erick Harold JULSEN, Appellee, Cross-Appellant. Nos. S-1523, S-1696. Supreme Court of Alaska. Aug. 14, 1987. Vincent Vitale, Kathleen A. Weeks, Law Offices of Vincent Vitale, Anchorage, for appellant/cross-appellee. William T. Ford, Anchorage, for appel-lee/cross-appellant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4090

25325

OPINION BURKE, Justice. This is an appeal and cross-appeal from a divorce decree. Appellant/Cross-Appellee Debra G. Julsen contends that (1) the trial court lacked jurisdiction to modify its original property division; and (2) that the modifications made are not supported by the evidence. Appellant/Cross-Appellant Erick H. Julsen contends that the trial court erred (1) by declaring Debra's inheritance a non-marital asset not subject to equitable distribution; and (2) by refusing to grant him joint custody of the Julsen's two sons. We affirm in part and reverse in part. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts Erick and Debra were married on May 26, 1972, in Anchorage, Alaska. Two children were bom during the marriage, Troy Eric, bom February 17, 1977, and Trace Edward, bom July 13, 1979. Erick, age 40, is a journeyman telephone-man for the Anchorage Telephone Utility, with a net monthly income of approximately $3,200. He works a regular 7:30 to 4:30 shift with weekends off. Debra, age 33, is a self-employed bookkeeper who works a varied schedule with flexible hours. She earns between $2,000 to $3,000 monthly from this employment. Debra also receives $1,500 monthly in trust fund dividends from two estates inherited from her mother. She will receive the rest of one trust, $70,000, when she reaches the age of 35, and the other, $170,000 when she reaches 45. Over the course of their marriage, the Julsens accumulated substantial marital assets, including, pertinent to this appeal, a family home in Eagle River and a Minnesota farm. During the marriage, Debra also inherited a large number of stocks valued at the time of divorce at $149,371. B. Proceedings Below Debra filed for divorce in May of 1984, seeking a custody determination and property division. After a two-day trial Judge Carlson awarded the parties a divorce, determined custody and divided the Julsen's marital assets. Relevant here, the trial court held (1) that it was in the children's best interest that Debra have legal and physical custody of the Julsen's two sons; (2) that Debra receive the parties' Eagle River home; that Erick receive the Minnesota property, valued at $28,500; and (3) that Debra's inheritance constituted a non-marital asset and no facts existed to justify its invasion. Ten days after entry of the decree, Erick filed a motion entitled Motion for Reconsideration or in the Alternative a New Trial. Thirty seven days later, the trial court amended its original property division order, and inter alia (1) awarded the Eagle River home to Erick and (2) revalued the Minnesota property from $28,500 to $5,000 "to reflect that [Erick's] ownership [was] subject to a life estate." This appeal and cross-appeal followed. II. DISCUSSION A. The Appeal 1. The Trial Court Did Not Lack Jurisdiction to Modify its Original Property Division Order Initially Debra contends that the trial court lacked jurisdiction to modify its original property division order. She argues that since the trial court failed to grant reconsideration within the twenty days allowed for such rulings by Civil Rule 77(m), the trial court lacked jurisdiction to redistribute the marital property. We disagree. Whatever name Erick gave to his motion, the record indicates it was, in effect, a motion to alter or amend a judgment under Civil Rule 59(f). This rule has no automatic denial provision. Consequently, the trial court was not without jurisdiction to amend its original findings. The fact that the trial court may have treated the motion as one for reconsideration or even a new trial is irrelevant. We have repeatedly held that we may affirm a decision on different grounds from those advanced by the trial court whether or not those grounds appear in the record. Foster v. Foster, 684 P.2d 869, 872 n. 6 (Alaska 1984); Native Village of Eyak v. G.C. Contractors, 658 P.2d 756, 758 (Alaska 1983); Carlson v. State, 598 P.2d 969, 973 (Alaska 1979). Even if we determine "that the decision of the superior court was incorrect as a matter of law, we may nevertheless uphold that decision if there is any other ground which, as a matter of law, would support the result reached by the superior court." Carlson, 598 P.2d at 973. Here, the trial court had jurisdiction as a matter of law to alter or amend its finding. Debra's argument, therefore, must fail. 2. The Trial Court's Modifications In its original property division order, the trial court awarded Debra the Eagle River house and valued the Minnesota property at $28,500. The trial court's amendments awarded the Eagle River house to Erick and reassessed the value of the Minnesota property at $5,000. Debra contests both these determinations arguing that they are not supported by the evidence. a. The Eagle River House Debra argues that Erick should not have been awarded the Eagle River house because she received custody of the children and they need to "live in the best environ ment" and because Erick cannot afford to make the house payments. Apparently,' Debra believes these considerations make the trial court's redistribution of the marital property inequitable. The equitable distribution of property upon divorce rests within the broad discretion of the trial court and will not be disturbed on appeal unless clearly unjust. Brooks v. Brooks, 733 P.2d 1044, 1048 n. 3 (Alaska 1987); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). Our review of the record reveals no indication that the trial court's amended property distribution is unjust. The Julsens' marital property was divided equally, each spouse receiving exactly 50% of the marital assets. We have repeatedly held that an equal division of property is presumptively valid. E.g. Brooks, 733 P.2d at 1058; Brooks v. Brooks, 677 P.2d 1230, 1235 (Alaska 1984) (Matthews, J., concurring). Moreover, the party seeking modification of the award bears the burden of showing the property division is clearly unjust. E.g., Hurn v. Hurn, 541 P.2d 360, 360 (Alaska 1975). Debra offers no valid or persuasive reason why the equal property division should be overturned. The trial court's determination on this issue is affirmed. b. The Minnesota Property The trial court originally valued the Minnesota property at $28,500. Subsequently, it revalued the property at $5,000 to "reflect that [Erick's] ownership is subject to a life estate." Debra contends that this determination is clearly erroneous because there were no documents produced at trial evidencing the existence of a life estate and no evidence at all to support the trial court's $5,000 valuation. A trial court's valuation of marital property is a factual determination. Brooks, 733 P.2d at 1056; Courtney v. Courtney, 542 P.2d 164, 168 & n. 9 (Alaska 1975). Findings of fact made at trial will not be set aside on appeal unless they are clearly erroneous. Alaska R.Civ.P. 52(a); Brooks, 733 P.2d at 1051. A finding will not be set aside as clearly erroneous unless we have a "definite and firm conviction" that a mistake has been made. Id. (quoting Williams v. Alyeska Pipeline Service Co., 650 P.2d 343, 347 (Alaska 1982)). We hold no such conviction as to the trial court's finding the existence of a life estate. There is sufficient reliable evidence in the record to justify considering the life estate for purposes of valuing Erick's interest in the property. The actual value attached to this interest, however, is clearly erroneous. The property was acquired when the parties bought the mortgage on the property for approximately $20,000 to help out Erick's father who was in financial difficulties. In return, Erick's father deeded the land to the parties, subject to, as the court found, a life estate in the father. Except for the fact that the parties paid approximately $20,000 to buy the mortgage, and thus the reversionary interest in the Minnesota property, there was no evidence presented as to the value of the interest. While the price paid for the reversionary interest may not be probative, as the transaction was between family members, the value actually attached to Erick's interest appears to have been divined rather than deduced from the evidence. On remand, the trial court should elicit evidence relating to the value of the reversionary interest and value it in accordance with the evidence. B. The Cross-Appeal 1. Debra's Inheritance During the course of their marriage, Debra received a substantial inheritance from her mother. The trial court held that this inheritance was a non-marital asset and that no reason existed to justify its invasion. Erick argues that Debra's inheritance should have been subject to distribution either because (1) the inheritance had been commingled and treated as joint assets; or (2) because his contributions to the marital community allowed Debra to keep her inheritance largely intact; or (3) because an inheritance received during marriage constitutes "property acquired during cover-ture" within the meaning of AS 25.24.-160(a)(4) and, thus, must be deemed a marital asset as a matter of law. The equitable division of property involves a three-step process. The trial court must determine what specific property is available for distribution, value that property, and determine the most equitable allocation. E.g., Carlson v. Carlson, 722 P.2d 222, 223-24 (Alaska 1986); Wanberg, 664 P.2d at 570. The appropriate property division rests within the broad discretion of the trial court and will not be disturbed on appeal unless clearly unjust. E.g., Gabaig v. Gabaig, 717 P.2d 835, 842 (Alaska 1986). Here, we are concerned only with the first step of this process, i.e., the determination of what assets are available for distribution. AS 25.24.160(a)(4) places all property acquired during the marriage, whether joint or separate, before the court for purposes of division. This statute also authorizes invasion of premarital holdings "when the balancing of the equities between the parties requires it." Id, Erick's first two arguments presume that an inheritance received during marriage is, or should be, treated as a premarital asset, but that the equities in this case require that it be invaded. Recently, in Brooks, 733 P.2d at 1053, we reiterated the view that the equities support invasion of premarital assets under two general circumstances: [FJirst, where the parties demonstrate their intent to treat premarital [assets] as joint property by both [spouses] taking an- active interest in the ongoing maintenance, management, and control of the asset(s), Burgess [¶. Burgess], 710 P.2d [417,] 432 [Alaska 1985]; Wanberg, 664 P.2d at 571, and, second, where one spouse's contribution to the marital community, pecuniary or otherwise, has benefited the other spouse's premarital property. Vanover, 496 P.2d at 648. Erick argues that both of these general circumstances exist here. We disagree. First, the record does not reflect an intention to hold the stocks jointly. Instead it shows that the stocks were placed in a joint account only "as an administrative convenience." Moreover, Debra had Erick's power of attorney giving her full authority over the account; Erick had no similar power. The only evidence of an intent to hold jointly, is the mere fact that the stocks were commingled in a joint account. However, as we recently observed, "the act of commingling, in itself, does not automatically establish intent to jointly hold property, and a court always should consider the property's source when determining what assets are available for distribution." Carlson, 722 P.2d at 224. Second, although the inherited stocks were put into a joint account in 1982, and Erick had the authority to give directions regarding the trading of the stocks, the record clearly shows that Erick took no active interest in the maintenance, management or control of the stocks. Erick admitted at trial that he did not give the stock broker any instructions concerning the account, nor could he identify a single transaction in which he had been involved. There is also no real indication that Erick's contributions to the marital community allowed Debra to preserve her inheritance. In fact, the opposite appears to be true. The record indicates that Debra's inheritance allowed the parties to acquire substantial marital assets. Debra contributed over $78,000 of her inheritance directly into the marital estate. Moreover, it was the availability of Debra's inheritance that allowed the parties to acquire the mortgage on the Eagle River house, an asset that was awarded to Erick. Debra also worked throughout the course of the Julsen's thirteen year marriage, earning $20,000 to $30,000 annually. Even assuming, arguendo, that Erick's contributions did benefit Debra's inheritance, it does not necessarily follow that invasion is required. Our prior cases do not hold, as Erick apparently assumes, that "benefit to separate property" mandates invasion. Rather, Vanover and its progeny merely indicate that where such circumstances exist, the trial court may in its discretion, determine that the equities require that all or part of the separate property be subject to distribution. See Brooks, 733 P.2d at 1053-54; Burrell v. Burrell, 537 P.2d 1, 3, 6 (Alaska 1975); Vanover, 496 P.2d at 648. In the case at bar, the trial court specifically found that "no reason exists to justify invasion of [Debra's inheritance]." In light of the fact that Erick received over $225,-000 in marital assets, is only 40 years old and earns over $50,000 a year, we perceive no abuse of discretion in the trial court's refusal to invade Debra's inheritance. Such a determination is not clearly unjust. Erick's third argument is that an inheritance received during marriage constitutes, as a matter of law, a marital asset. Erick's argument essentially is that under the plain meaning of AS 25.24.160(a)(4) , any asset acquired during marriage by either spouse is a marital asset subject to distribution. Consequently, since Debra acquired her inheritance during the marriage, it must be deemed a marital asset. Although we have had the issue of whether an inheritance received during marriage constitutes property acquired during marriage before us on several prior occasions, we have never actually decided the matter. Looking to other jurisdictions for guidance shows that a substantial majority of states deem inherited property to be the separate non-marital property of the inheriting spouse. Hussey v. Hussey, 280 S.C. 418, 312 S.E.2d 267, 270 (1984). By statute, twenty-one states and the District of Columbia either define inherited property as separate property or exclude it from the definition of marital property. See L. Golden, Equitable Distribution of Property § 5.20, at 113-14 (1983). Accord, Uniform Marital Property Act § 4, reprinted in 9A U.L.A. 29 (Supp.1986). Other jurisdictions have reached the same result by judicial decision. See Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304, 305 (1982); Van Newkirk v. Van Newkirk, 212 Neb. 730, 325 N.W.2d 832, 834 (1982); Anderson v. Anderson, 282 S.C. 162, 318 S.E.2d 566, 567 (1984); Hussey, 312 S.E.2d at 270. See generally, Golden, supra § 5.20, at 113-14; 1 J. McCahey, Valuation and Distribution of Marital Property § 18.05[4], at 18-72 to 18-75 (1986). The policy considerations underlying this view have been stated as follows: The philosophy underlying equitable distribution is that marriage is a partnership and both spouses contribute, either directly or indirectly to the acquisition of property obtained during the marriage. If property is acquired without the joint efforts of the parties such property arguably should not be subject to division. For this reason, and because most inheritances are from family members and may have strong sentimental value, many states . categorize inherited property as separate property. Golden, supra, § 5.19, at 113 (footnote omitted). Other rationales variously identified include (a) tradition; (b) a belief that property which does not come into the marriage through the spouses' mutual efforts owes nothing to the marriage and is not intended to be shared; (c) the recognition that marital property is or should be only that property which arises from or to some extent is' augmented by the efforts of the marital parties; and (d) the fact that inclusion of inherited property in the marital estate removes it from the natural line of succession, thus thwarting the intent of the person who acquired the property and passed it on to the inheriting spouse. See Bailey, 295 S.E.2d at 305; Hussey, 312 S.E.2d at 270. We find the majority rule and the policy considerations underlying it persuasive for several reasons. First, it is in line with our view of equitable distribution in general, which recognizes the partnership theory of marriage and considers the mutual effort and tangible contributions of the parties rather than the mere existence of the marital relationship. See, e.g., Brooks, 733 P.2d at 1053-54. Second, it accords the term acquired its ordinary and common meaning. Therefore, we hold that for the purposes of equitable division, an inheritance received by one spouse during marriage is not property acquired during coverture within the meaning of AS 25.24.160(a)(4), but constitutes a non-marital asset of the inheriting spouse. As such, an inheritance will not be subject to distribution unless a balancing of the equities requires it. Because the equities require no invasion here, the trial court's decision on this issue is affirmed. 2. Child Custody Erick's second assertion of error is that the trial court based its decision to deny joint custody on inadequate findings. Child custody disputes are among the most difficult a trial court faces. McDanold v. McDanold, 718 P.2d 467, 468 (Alaska 1986). Trial courts are, therefore, vested with broad discretion in determining where custody should be placed. Id. See also, Craig v. McBride, 639 P.2d 303, 304 (Alaska 1982); Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977). Accordingly, we will reverse a trial court's resolution of a custody issue only if we are convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous. E.g. McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986). An abuse of discretion may be found where the trial court considered improper factors, failed to consider statutorily-mandated factors, or improperly weighed certain factors in making its determination. Id. We find none of the above circumstances present here. The trial court grounded its decision primarily on its finding that the Julsens could not cooperate "to the extent necessary to insure the success of joint custody." This finding is amply supported by the record. In McClain, we stated that "[w]e think it apparent, . that cooperation between parents is essential if [joint custody] is to be in the best interests of the child." 716 P.2d at 386. In Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983), we upheld the trial court's rejection of joint custody based on its finding that the parties would not be able to cooperate. In light of McClain and Smith, we conclude that the trial court did not abuse its discretion in finding that joint custody was not in the Julsens' children's best interests. The trial court's custody determination is affirmed. III. CONCLUSION For the reasons discussed above, the trial court's valuation of the reversionary interest in the Minnesota property is REVERSED and REMANDED so that the trial court may elicit evidence as to this property's value. In all other respects, the trial court's judgment is AFFIRMED. AFFIRMED in part, REVERSED in part, and REMANDED. . Erick was granted visitation rights of every Wednesday evening, every other weekend, evety other holiday, and six consecutive weeks every summer. Erick does not appeal the visitation determination. . Civil Rule 59(f) provides: A motion to alter or amend the judgment shall be served not later than 10 days after the entry of judgment. In regards to the identical Federal Rule, Professor Moore has stated: Any motion that draws into question the correctness of the judgment is functionally a motion under Civil Rule 59(e), whatever its label. 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice ¶204.12[1], at 4-67 (1987). . AS 25.24.160(a)(4) provides: In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide (4) for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of their real or personal property to the other party; . Whether or not a particular piece of property is a marital or premarital asset "is in large part a legal determination, involving the interpretation of AS [25.24.160(4)1, and applying legal principles to the facts of the case." Wanberg, 664 P.2d at 570. With respect to the legal analysis employed at the trial court level, review is based upon our independent judgment. Id. Whether or not the equities require invasion of premarital assets, on the other hand, lies within the broad discretion of the trial court and will not be overturned absent a clear abuse of discretion. Id. See also Vanover v. Vanover, 496 P.2d 644, 646-48 (Alaska 1972) and cases cited therein. To establish an abuse of discretion, the aggrieved party must show that the invasion or failure to invade was clearly unjust. Vanover, 496 P.2d at 645. See also Wanberg, 664 P.2d at 570 n. 9. . See supra note 4. . In Burrell, 537 P.2d at 2-3, Homer had inherited a 'A interest in a trust estate worth $1,167,-000. The trial court held that the inheritance constituted a non-marital asset and declined to invade it in making the property division. Id. at 3. On review, we did not question the trial court's theory that the inheritance was to be classiñed as a non-marital asset, but held, on the assumption that the inheritance should be deemed property acquired before coverture, that "a just division of the property . required invasion of [Homer] separate property, . and the award of some portion of . [it] to [Teresa]." Id. at 6 & n. 15 (footnotes omitted). More recently in Gabaig, we intimated that property inherited during marriage should be treated as a non-marital asset, but since the point was not argued we had no occasion to rule on the matter. 717 P.2d at 842 & n. 17. In that case, we upheld the trial court's property division awarding Dorothy only one-third of the marital assets even though all the other factors indicated that a more equal division would be equitable. Id. Our rationale in Gabaig for upholding the husband's greater share was that "he inherited it." Id. at 843. . UMPA § 4(g)(1) provides in part: Property acquired by a spouse during marriage . is individual property if acquired: (1) by gift or a disposition at death made by a third person to the spouse and not to both spouses. 9A U.L.A. at 29. . We have repeatedly stated that unless words have been given a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage. Eg., Division of Elections v. Johnstone, 669 P.2d 537, 539 (Alaska 1985); Lynch v. McCann, 478 P.2d 835, 837 (Alaska 1970). See also AS 01.10.040 ("words and phrases shall be construed according to . their common and approved usage"). In this regard, Black's Law Dictionary 23 (5th ed. 1979) defines acquired as follows: To gain . usually by one's own exertions; . to obtain by search, endeavor, investment, practice or purchase, . Likewise, the Random House College Dictionary 13 (Rev. ed. 1984) defines acquired as "to gain oneself through one's actions or efforts." As commonly used, then, the word acquired presupposes some effort, endeavor or action in the acquisition of the property, and thus, does not include property, like inheritances, which are received gratuituously from a third party. . Property inherited by both spouses jointly, of course, constitutes marital property subject to division. . Although Judge Carlson may not have made express findings on all the statutory factors, the record reflects that he gave careful scrutiny to the issue and considered those factors pertinent to the case. Indeed, we do not believe custody determinations should be overturned merely because a judge fails to tally the statutory factors like runs, hits and errors in a box score. In our opinion, the trial court made a sound decision and no reason exists at this time to overturn it.

11719890

Walter H. SIGGELKOW, Appellant, v. Marilyn Sharon SIGGELKOW, Appellee

Siggelkow v. Siggelkow

1982-04-30

No. 5630

985

990

643 P.2d 985

643

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

Walter H. SIGGELKOW, Appellant, v. Marilyn Sharon SIGGELKOW, Appellee.

Walter H. SIGGELKOW, Appellant, v. Marilyn Sharon SIGGELKOW, Appellee. No. 5630. Supreme Court of Alaska. April 30, 1982. C. R. Kennedy, Kennedy, Azar & Dono-hue, P. C., Fairbanks, and George M. Yeager, Fairbanks, for appellant. Richard D. Saved, Law Offices of Richard D. Saved, Fairbanks, for appellee. Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

3488

20994

OPINION COMPTON, Justice. This appeal concerns an action for divorce. We address below the propriety of the superior court's denial of a motion for a continuance. We also address the award of attorney's fees and the assessment of the cost of providing a guardian ad litem. I. FACTUAL AND PROCEDURAL BACKGROUND Walter Siggelkow and Marilyn Siggelkow (hereafter the parties will be referred to by their first names) were married on October 16, 1968. There are two children of the marriage. On December 7, 1979, Marilyn filed an action for divorce. Following the commencement of the divorce proceedings, Walter changed counsel on several occasions. Walter consented to the withdrawal of his second attorney prior to oral arguments that were to be held on April 8, 1980 for the disposition of various motions relating to the divorce. This prompted the parties to request postponement of the arguments until April 29, 1980. At the April 29 hearing Walter still did not have counsel. The court addressed Walter regarding his lack of representation at the hearing. Walter replied that he intended to be represented "in the final . . . one." The court ordered that the case be set for trial within sixty days. However, it became impossible to schedule the trial within sixty days. In June 1980, the court notified the parties by mail that it had set the divorce hearing for the week of August 11. On June 13, 1980, Walter signed the certified receipt indicating that he had received this notice. Walter wrote to the superior court on June 16, 1980, requesting that his case be continued until October. He claimed that some of his witnesses could not attend in August and that he had not been able to obtain certain documents. The hearing date was not changed. On August 8, 1980, a pre-trial conference was held. Walter attended without counsel. However, Walter did have counsel on the day of the final divorce hearing, three days later. His counsel filed a notice of change of judge pursuant to Civil Rule 42(c). This recusal resulted in the reassignment of the case to another judge, and the final divorce hearing was rescheduled for September 3, 1980. Walter moved for a continuance on August 18, 1980, alleging that he had been hospitalized in Fairbanks on August 15, 1980, and that he would not be able to "participate in his own trial for quite some time." A letter from a physician was attached in support of the motion. The superior court denied the motion on September 3, 1980, and the divorce hearing proceeded that same day. The court entered judgment on October 13,1980. The court awarded Marilyn custody of the children and a portion of the Siggelkows' property. The court also awarded Marilyn attorney's fees and costs. In addition, the court assessed against Walter all costs incurred by the State of Alaska in providing a guardian ad litem. Walter appeals. He submits that the superior court erred in denying his motion to continue the divorce hearing, in awarding Marilyn attorney's fees, and in assessing him with the full cost of the guardian ad litem. II. DENIAL OF CONTINUANCE We have consistently held that "a trial court's refusal to grant a continuance will not be disturbed on appeal unless an abuse of discretion is demonstrated." Gregoire v. National Bank of Alaska, 413 P.2d 27, 33 (Alaska), cert. denied, 385 U.S. 923, 87 S.Ct. 238, 17 L.Ed.2d 147 (1966). Denial of a motion for continuance constitutes an abuse of discretion "when a party has been deprived of a substantial right or seriously prejudiced." Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973). The particular facts and circumstances of each case determine whether the denial of a continuance is so unreasonable or so prejudicial as to amount to an abuse of discretion. Wright v. State, 501 P.2d 1360, 1366 (Alaska 1972); Kalmus v. Kalmus, 103 Cal.App.2d 405, 230 P.2d 57, 64 (1951), cert. denied, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676 (1952). Several policy considerations intermingle in this determination. On the one hand, [bjecause of the necessity for orderly, prompt and effective disposition of litigation and the loss and hardship to the parties to an action, as well as to witnesses therein, it becomes and is part of the bounden duty of the trial judge, in the absence of some weighty reason to the contrary, to insist upon cases being heard and determined with as great promptness as the exigencies of the case will permit. Kalmus v. Kalmus, 230 P.2d at 63. On the other hand, the trial court's legitimate concern for preventing delay should not prejudice the substantial rights of parties by forcing them to go to trial without being able to fairly present their case. Yates v. Superior Court, 120 Ariz. 436, 586 P.2d 997,998 (1978); Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842, 844 (1975). Walter asserts that the denial of his motion for a continuance prejudiced his case because ill health limited his opportunity to discuss his ease with counsel and hampered their preparation for the divorce hearing. Allegedly, Walter was hospitalized only four or five days after he retained counsel. Initially, we note that the "[ijllness of a party does not ipso facto require the granting of [a continuance]." Kalmus v. Kalmus, 230 P.2d at 63. Generally, the denial of a continuance requested on the ground of ill health will be held reversible error only when the applicant suffered prejudice as a result of the denial. The prejudice that Walter claims to have suffered stems not from his illness, but from his late retention of counsel. Early in 1980, Walter's second attorney withdrew with Walter's consent. Walter had stated to the superior court at the April 29, 1980 hearing that he intended to have counsel "in the final . one." Yet, Walter appeared at the pre-trial conference on August 8, 1980 — three days before the final divorce hearing — without counsel. He has not explained why he waited until the court proceedings had almost started before hiring an attorney. Late retention of counsel does not necessarily warrant a continuance: [W]hen new counsel is engaged just prior to the trial date, the alleged lack of preparation on the part of such counsel is not necessarily a ground for continuance; particularly where the party has been guilty of negligence, such as inexcusable delay in employing the new counsel, or where such recently retained counsel could have prepared himself for trial by the exercise of reasonable diligence; but where he could not have thus prepared himself, the cause may, in a proper case, be continued. Benson v. Benson, 66 Nev. 94, 204 P.2d 316, 318 (1949). Cf. Barrett v. Gagnon, 516 P.2d at 1203 (attorney's withdrawal on eve of trial, leaving client unprepared, not ipso facto basis for continuance). If the rule were otherwise, "one or the other of the litigants could indefinitely avoid trial of the issues by making late substitutions." Benson v. Benson, 204 P.2d at 319, quoting Berger v. Mantle, 18 Cal.App.2d 245, 63 P.2d 335, 337 (1936). In the present case, Walter received notice on June 13 that the final divorce hearing was scheduled to begin on August ll. Notwithstanding such notice, Walter waited until the last minute to hire an attorney. No evidence is presented to excuse this delay in obtaining a new attorney. Prejudice resulting from a party's lack of diligence in securing an attorney does not afford a basis to obtain a continuance. See Maynard v. Bullis, 99 Cal.App.2d 805, 222 P.2d 685, 686 (1950); Benson v. Benson, 204 P.2d at 319. Moreover, since the challenge to the judge resulted in a postponement from August 11 to September 3, Walter's new attorney had adequate opportunity to prepare the case. In our view, the court's decision to proceed as scheduled did not deprive Walter of the right to present his case. We conclude, therefore, that the denial of the motion for continuance was not an abuse of discretion. III. THE AWARD OF COSTS AND ATTORNEY'S FEES At the close of the trial the superior court declared its oral decision. With respect to attorney's fees the court stated, "The plaintiff is the prevailing party in this litigation and is entitled to costs and attorney's fees." In its findings of fact the superior court again stated that "[pjlaintiff is the prevailing party herein, and is entitled to an award of costs and attorney fees." The final judgment of the superior court awarded plaintiff costs in the amount of $1,224.91 and attorney's fees in the amount of $6,558.27. The superior court evidently based its award of attorney's fees and costs upon the "prevailing party" rule of Civil Rule 82 that normally governs the award of attorney's fees. However, divorce actions constitute an exception to this rule. AS 09.55.-200(a)(1) regulates the award of attorney's fees and costs in divorce cases. Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981); Johnson v. Johnson, 564 P.2d 71, 76-77 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978); Burrell v. Burrell, 537 P.2d 1, 6-7 (Alaska 1975). AS 09.55.200(a) provides in part: During the pendency of the action the court may provide by order (1) that one spouse pay an amount of money as may be necessary to enable the other to prosecute or defend the action; As noted in Sherry v. Sherry, 622 P.2d 960, 965 (Alaska 1981), the statute "permits, but does not compel," the award of attorney's fees and costs. Nevertheless, according to the rule that a proper result will not be disturbed on appeal regardless of the reasoning employed below, the superior court's erroneous reliance upon the "prevailing party" standard does not constitute reversible error if its distribution of attorney's fees and costs is justified under AS 09.55.200(a)(1). Burrell pronounced the standard for reviewing attorney's fees awards in accordance with AS 09.55.200(a)(1): Whether or not to make any award pursuant to AS 09.55.200(a)(1) as well as the amount of any such award, is committed to the sound discretion of the trial court. The parties' relative economic situations and earning powers are relevant factors to be weighed in determining whether to order payment pursuant to AS 09.55.-200(a)(1). 537 P.2d at 7 (emphasis added). Walter contends that the superior court abused its discretion because its award did not conform to this standard. Marilyn argues that despite the terminology used by the superi- or court the award was in fact consistent with the relative economic situations of the parties and, therefore, should not be reversed. Walter, a former teacher, is 57 years of age and receives $13,000.00 yearly as an early retiree. In comparison, Marilyn is 34 and earns $32,600.00 per year as a school teacher. However, income is not the sole determinant of one's economic standing. We have recognized that other factors may "have bearing on the relative economic standing of the parties" and "are reasonable factors for the trial court to consider." Johnson v. Johnson, 564 P.2d at 77. Such factors may include whether the property was divided equally and whether an equal amount in attorney's fees was expended by the parties. Id. These other factors, however, do not offset the wide differential in current earnings between the parties. Marilyn testified that because of Walter's delinquency she had to pay large debts and expenses relating to their marital property. This is irrelevant in assessing the parties' present economic status. Further, these past payments were considered by the trial court in its award of property to the parties. The superior court's property division awarded Walter real property worth $130,000.00 compared to Marilyn's real property award valued at $108,500.00. This comparison is misleading, however, since some of Walter's property was encumbered. Thus Marilyn received a substantial property award from which she could have paid her attorney's fees. In view of these circumstances, we conclude that the superior court's award of costs and attorney's fees was unreasonable and constituted an abuse of discretion. Therefore, we direct each side to bear their own costs and attorney's fees. IV. GUARDIAN AD LITEM FEES AS 09.65.130(a) gives the superior court discretionary authority to appoint a guardian ad litem to represent the interests of a minor child in legal proceedings. The statute authorizes the superior court to "appoint an attorney to represent the minor with respect to his custody, support, and visitation or in any other legal proceeding involving his welfare" and to "enter an order for costs, fees, and disbursements in favor of the child's attorney." Subsection (b) provides, in part: If custody, support, or visitation is an issue, the order for costs, fees, and disbursements shall be made against either or both parents, except that, if one of the parties responsible for the costs is indigent, the costs, fees, and disbursements for that party shall be borne by the state. If either or both parents are only temporarily without funds, as determined by the court, the court may advance payment for legal representation or other services rendered to the child; however, no repayment may be required for those who are receiving legal services for the indigent.... The court shall, if possible, avoid assigning costs to only one party by ordering that costs of the child's legal representation or other services be paid from proceeds derived from a sale of property belonging to both parents, before a division of property is made. [Emphasis added.] Early in the divorce proceedings the superior court appointed a guardian ad litem to represent the interests of the Siggelkow children. At the conclusion of the divorce hearing, the superior court ordered that Walter pay the entire $3,131.27 cost of the guardian ad litem and secured this judgment by a deed of trust on a dwelling owned by Walter. The fees were assessed against Walter because Walter had objected to the court's motion to begin the trial with the testimony and examination of the guardian ad litem. As a result, fees were incurred while the guardian ad litem spent several idle days in court. The guardian ad litem was not questioned until the end of the trial. Walter argues that the superior court should have ordered Marilyn to share in the cost of the guardian ad litem because it was possible, within the meaning of AS 09.65.-130(b), to tax both parties. Walter points out that the superior court could have ordered a sale of vacant lots owned by the Siggelkows as marital property. In its division of the real property, the superior court awarded these lots to Marilyn. We hold that the superior court erred in taxing Walter with the full cost of the guardian ad litem. AS 09.65.130(b) generally precludes the superior court from taxing only one parent with the cost of a guardian ad litem when both parents can afford the cost. In this situation the statute requires that both parties bear the cost of the guardian ad litem equally. Marilyn emphasizes the initial language of AS 09.65.130(b) — that costs may be ordered "against either or both parents." However, the remainder of the statute indicates that "either or" refers to a choice that is to be made on the basis of the parents' individual financial resources and is controlled by the statement that the "court shall, if possible, avoid assigning costs to only one party.. . " Here, it is possible to avoid assigning costs to just one party, since both have the ability to contribute to the fees of the guardian ad litem. This construction is consistent with Children's Rule 15(c), which provides for an inquiry to determine whether a child's parents are financially able to employ counsel for the child. In this case, the superior court charged Walter with the full cost merely because Walter requested that the guardian ad li-tem remain present in court until the time when the guardian ad litem's testimony would be required. This is not a proper consideration under AS 09.65.130(b). Indeed, the presence of the guardian ad litem at the trial constitutes an essential element of the guardian ad litem's duty. In Veazey v. Veazey, 560 P.2d 382, 387 (Alaska 1977), we held that a guardian ad litem "is in every sense the child's attorney, with not only the power but the responsibility to represent the client zealously and to the best of his ability." Thus, the effect of the superior court's decision was to penalize Walter merely for requesting that the guardian ad litem perform his or her duty. We remand this matter to the superior court for the purpose of entering judgment against each party for one-half the cost of the guardian ad litem. Payment shall be secured by deeds of trust placed upon both Walter's and Marilyn's property, as allocated by the divorce decree. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. . Walter also raises four other issues on appeal. He claims that the superior court erred (1) in awarding Marilyn $10,000.00 for jewelry that he had converted; (2) in finding that he had depleted a $10,000.00 trust fund set up for his son, Karl, and ordering him to restore it; (3) in requiring him to seek psychiatric counseling before allowing him visitation privileges with the children; and (4) in dividing the parties' property. Based upon a careful review of the record we find no abuse of discretion in the superior court's resolution of these issues. In each instance the evidence adequately supports the superior court's findings. . See also Jimmie v. Alaska Village Electric Co-op,.Inc., 624 P.2d 1258, 1260 (Alaska 1981); W. E. W. v. D. A. M., 619 P.2d 1023, 1024 (Alaska 1980); Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973); Wright v. State, 501 P.2d 1360, 1365-66 (Alaska 1972); Doe v. State, 487 P.2d 47, 57 (Alaska 1971). . We note that following the denial of the motion for continuance, Walter was present at the trial. Where a court denies a motion for continuance sought by a party who claims illness, the presence of the party at trial is oftentimes indicative of whether the denial resulted in prejudice. Compare Pollard v. Walsh, 194 Colo. 566, 575 P.2d 411, 412 (1978) (prejudice where party unable to appear) with Fejer v. Paonessa, 104 Cal.App.2d 190, 231 P.2d 507, 509 (1951) (no prejudice). See generally An-not., 68 A.L.R.2d 470, 512-13 (1959). . Walter's June 16, 1980 letter to the superior court demonstrates that he had actual knowledge of the trial date. The relevant portion of the letter provided: "I respectfully request a continuance until late September or October, 1980 regarding . Siggelkow v. Siggelkow, currently set for August 11, 1980." . Davis v. Hallett, 587 P.2d 1170, 1171 (Alaska 1978). . In addition to his pension, Walter receives an undisclosed annuity payment and rental income from certain property holdings. However, Walter contends that mortgage payments on the property exceed the rental income and that the deeds of trust that the superior court imposed upon three of the parcels encumbers their sale. . Although the parties' incomes were approximately equal during their marriage, this fact cuts in favor of requiring the parties to bear their respective costs and attorney's fees. . The superior court found that Marilyn "satisfied marriage debts since the separation and arising from the [parties'] new home in an amount in excess of $32,572.00, during a period when [Walter] ceased paying debts of the marriage"; that appellant "failed and refused . . to satisfy any debts of the marriage or make expenditures for preservation of marriage property"; that "to satisfy marriage debts [Marilyn] was compelled to withdraw more than $30,-000.00 from her tax sheltered annuity, and as a result thereof, has faced additional taxes and penalties of approximately $7,000.00"; that Marilyn "paid medical expenses for the children pending the action" while appellant did not; that Marilyn paid property taxes, sewer and water assessments; and that since the separation Marilyn has had to spend $550.00 per month in rent for herself and the children. . At the time of the property division, one of the parcels of property was subject to a deed of trust equalling $16,475.18; another parcel was subject to a $27,783.18 deed of trust. Marilyn is the beneficiary of the larger deed of trust. . Alaska R.Civ.P. 17(c); Alaska R. Children's P. 11(a), 15. . We hesitate to pronounce an ironclad rule because under AS 09.65.130(a) a guardian ad litem may be appointed to represent the minor's rights in relation to only one parent, such as when the state initiates a child custody action against a previously divorced, custodial parent.

11710359

Bonnie Joyce PROCTOR, Petitioner, v. STATE of Alaska, Respondent

Proctor v. State

1982-04-08

No. 5718

5

7

643 P.2d 5

643

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:24.918351+00:00

CAP

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

Bonnie Joyce PROCTOR, Petitioner, v. STATE of Alaska, Respondent.

Bonnie Joyce PROCTOR, Petitioner, v. STATE of Alaska, Respondent. No. 5718. Court of Appeals of Alaska. April 8, 1982. Patrick J. McKay, Pestinger & McKay, Anchorage, for appellant. Eugene P. Murphy, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1014

6350

OPINION SINGLETON, Judge. Proctor was convicted in the district court of operating a motor vehicle while under the influence of intoxicating liquor in violation of AS 28.35.030. Her conviction followed a plea of nolo contendere, which in turn followed the denial of her motion to suppress certain evidence allegedly resulting from her arrest. She preserved the right to challenge the search on appeal pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974), and Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978). Prior to petitioning for hearing in this court, Proctor appealed to the superior court. Since the appeal was taken to the superior court before rules governing appeals to this court were promulgated, we have decided to grant the petition for hearing. The sole issue on appeal is defendant's contention that AS 12.25.033, which permits a police officer to arrest a defendant for violation of AS 28.35.030 on probable cause but without a warrant violates Alaska Const, art. 1, § 14 prohibiting unreasonable searches and seizures and the corresponding provisions of the federal constitution. She contends the statute grants unreasonable authority to police officers and is void for vagueness. Consequently, she concludes, if the statute is unconstitutional her arrest is invalid and any fruit of the arrest, i.e. a breathalyzer test, is inadmissible. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The issue presented by Proctor is of first impression in this jurisdiction, Layland v. State, 535 P.2d 1043 (Alaska 1975), is not on point; for at that time existing statutes did not permit an arrest for violation of AS 28.35.030 without a warrant unless the offense was committed in the officer's presence. In Layland, the supreme court specifically noted that the legislature might solve any problem created by the case by amending the statute to permit the war-rantless arrest of persons where there is probable cause to believe they were driving while intoxicated. See Layland, 535 P.2d at 1050 n.34 which reads: As mentioned previously, in the circumstances of this case, we believe Layland could have been arrested, but he was not. In other drunk driving cases, if the arrest requirement works a hardship, Alaska's arrest laws could be modified, as has been done in other states. For example, the California Vehicle Code was amended in 1969 to read as follows: Notwithstanding any other provision of law a peace officer may, without a warrant, arrest a person involved in a traffic accident when the officer has reasonable cause to believe that such person had been driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug. Cal.Vehicle Code § 40300.5 (West 1971). The legislature accepted the supreme court's invitation and enacted AS 12.25.033. In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court held that a warrantless arrest for possession of stolen mail, a felony, did not violate the fourth amendment to the United States Constitution. The court noted that prior decisions had intimated a preference for search warrants in cases of both search and seizure, but held that at least in the case of arrest, that preference was not of constitutional dimensions. In part, the court relied upon the common law which permitted a warrantless arrest based upon probable cause for felonies, noting that the common law did not permit war-rantless arrests for misdemeanors. From this, Proctor infers that a statute authorizing warrantless arrests for misdemeanors not committed in the arresting officer's presence would violate the fourth amendment, and by extension, art. 1, § 14 of our state constitution. It is not necessary for us to decide whether Watson is susceptible of this interpretation; though we note that the dissenters, at least, felt that the majority's reasoning authorized warrantless arrests for both misdemeanors and felonies. See Watson, 423 U.S. at 456, 96 S.Ct. at 843, 46 L.Ed.2d at 627 (Marshall, J., dissenting); 2 W. LaFave, Search and Seizure, § 5.1(b), at 222, 231 (1978). We reach this conclusion because the fourth amendment is not offended by warrantless searches or arrests based upon exigent circumstances. See Watson, 423 U.S. at 437, 96 S.Ct. at 834, 46 L.Ed.2d at 617 (Marshall, J., dissenting). We conclude that the legislature has determined that exigent circumstances exist where there is probable cause to believe a suspect is driving while intoxicated. We are not able to say that that legislative determination violates due process. Consequently, we find no violation of either the state or federal constitution. The decision of the superior court is AFFIRMED. . Proctor cites Layland v. State, 535 P.2d at 1049-50 for the proposition that the risk of loss of evidence in a drunk driving situation cannot amount to exigent circumstances justifying a warrantless arrest. We disagree with Proctor's reading of the case. First, the supreme court requires that any search for blood or, by extension, breath must be made contemporaneous with an arrest. The court recognized that there was sufficient probable cause for a felony arrest but, nevertheless, sanctioned the police for failing to arrest. The court's treatment of exigent circumstances must be considered in that context. The supreme court was concerned that any other rule would permit a search without an arrest, with the result that the evidence disclosed by the search would be used to establish probable cause for an arrest. Here defendant concedes probable cause for the arrest. There is no risk that exploratory searches would occur. The supreme court's suggestion that the legislature authorize warrantless arrests under similar circumstances, to avoid im-permissibly burdening an investigation, makes it clear that it was the absence of the arrest and not the absence of the warrant which was of primary concern.

10403329

Genevieve THOMAS, et al., in their own behalf, and in behalf of others similarly situated, and Bonnie Hurst and Louise Mills, in their own behalf, Appellants, v. ANCHORAGE TELEPHONE UTILITY and International Brotherhood of Electrical Workers, Union Local 1547, Appellees

Thomas v. Anchorage Telephone Utility

1987-07-28

No. S-51

618

634

741 P.2d 618

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Genevieve THOMAS, et al., in their own behalf, and in behalf of others similarly situated, and Bonnie Hurst and Louise Mills, in their own behalf, Appellants, v. ANCHORAGE TELEPHONE UTILITY and International Brotherhood of Electrical Workers, Union Local 1547, Appellees.

Genevieve THOMAS, et al., in their own behalf, and in behalf of others similarly situated, and Bonnie Hurst and Louise Mills, in their own behalf, Appellants, v. ANCHORAGE TELEPHONE UTILITY and International Brotherhood of Electrical Workers, Union Local 1547, Appellees. No. S-51. Supreme Court of Alaska. July 28, 1987. Paul L. Davis, Lee Holen, Boyko, Davis & Dennis, and Elizabeth I. Johnson, Anchorage, for appellants. Thomas P. Klinkner, Asst. Mun. Atty., Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee Utility. M. Gregory Oczkus, Anchorage, for ap-pellee Union. Allison E. Mendel, Jermain, Dunnagan & Owens, Anchorage, amicus curiae for Totem Ass’n of Educational Support Personnel. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

8734

55084

OPINION COMPTON, Justice. In this case we are called upon to determine the propriety of a negotiated salary increase for Anchorage Telephone Utility (ATU) employees in 1975 which featured a larger increase for male-dominated positions (45%) than for female-dominated positions (35%). The trial court held that defendants ATU and the International Brotherhood of Electric Workers, Local 1547 (IBEW) successfully rebutted the plaintiffs' prima facie case of disparate treatment sex discrimination; plaintiffs failed as a matter of law to establish a case of disparate impact sex discrimination; IBEW did not breach its duty of fair representation; ATU was entitled to partial attorney's fees, and IBEW was entitled to partial attorney's fees and costs. Our disposition of the case requires a remand for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND This class action sex discrimination suit began in 1976 when Thomas et al. [Thomas] sued ATU for violation of AS 18.80.-220. IBEW, the union representing Thomas, was made a defendant in 1977. The allegations of discrimination involved hiring and promotion practices, and a 1975 collective bargaining agreement (the 1975 Agreement) negotiated between IBEW and ATU. Complaints regarding the 1975 Agreement covered a range of employment terms and conditions (including lunch provisions, shift differentials, starting pay levels and life insurance benefits), but the heart of the grievance was the disparity between the negotiated wage increase received by male-dominated groups and female-dominated groups. The hourly work force at ATU fell into three main categories: plant forces (300 employees — predominantly male); traffic forces (70 employees — predominantly female); commercial/clerical forces (25 employees — predominantly female). Plant forces received a 45% wage increase over two years; traffic, commercial and clerical (TCC) forces received a 35% wage increase for the same period. The trial court certified the class action in 1979. In November 1982 appellants and ATU entered into a consent decree settling class claims of discrimination in hiring and promotion and failure to grieve issues. A court trial was held on the claims surrounding the 1975 Agreement. The superior court held that 1) Appellants established a prima facie case of disparate treatment, but ATU sufficiently rebutted the prima facie case by presenting valid business justifications for the terms of the 1975 Agreement; 2) IBEW did not breach its duty to represent the plaintiffs fairly in the negotiating process; 3) Appellants failed to establish a pri-ma facie case under the disparate impact theory of employment discrimination; 4) ATU was entitled to $49,515.96 in fees and IBEW was entitled to $7,380.00 in fees and $4,007.71 in costs. Thomas appeals. II. DISCUSSION In interpreting this area of Alaska law, we have examined the parallel body of federal employment discrimination law embraced in 42 U.S.C. 2000e — 2000e-17 (1982) (Title VII) and the accompanying federal cases for guidance. E.g., Alaska State Commission for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980). Federal courts have identified two major theories for proving employment discrimination under Title VII: disparate treatment and disparate impact. A. DISPARATE TREATMENT ANALYSIS. The United States Supreme Court has explained that disparate treatment is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396, 415 n. 15 (1977). There are three main stages in a disparate treatment case. The first stage requires the employee to introduce evidence raising an inference of employer discriminatory intent. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973). If the employee can meet this initial burden he or she has established a prima facie case of disparate treatment which shifts the burden to the employer to rebut the prima facie case. It is important to note that a "wide variety of evidentiary patterns may suffice to establish a prima facie case; the primary inquiry is whether a claimant has demonstrated circumstances which, if otherwise unexplained by the employer, make it appear likely that impermissible factors played a role in the employer's decision." Strand v. Petersburg Public Schools, 659 P.2d 1218, 1222 n. 7 (Alaska 1983). There is no one test or formula that an employee must satisfy to make out a prima facie case. The second stage occurs after the employee establishes a prima facie case. At that point, the burden shifts to the employer who must "articulate some legitimate, nondiscriminatory reason for the [disparate treatment]." Alaska USA Federal Credit Union v. Fridriksson, 642 P.2d 804, 808 (Alaska 1982) (footnote omitted), quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 678. If the employer articulates legitimate business reasons for the disparate treatment, the burden shifts back to the employee for the final stage. At this point, the employee has the opportunity to prove that the employer's proffered reasons are pretextual. Fridriksson, 642 P.2d at 808. An employee has broad latitude in attempting to discharge the burden associated with the third stage. He or she may do so "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207, 217 (1981). The evolution of disparate treatment employment discrimination jurisprudence in Alaska has left some uncertainty regarding the precise burden an employer must bear when attempting to rebut an employee's prima facie case. Must the employer prove a legitimate business reason, or articulate a legitimate business reason to overcome the prima facie case? We recognize the need for a clear statement of the law to answer this question, as we are mindful that the difference between having the burden of persuasion versus the burden of production can determine the outcome of litigation. We are persuaded by the federal approach, set forth in Burdine, where the Supreme Court explained: the employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. Burdine, 450 U.S. at 257,101 S.Ct. at 1096, 67 L.Ed.2d at 218. Some courts have voiced reservations about giving employers only a burden of production. In Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir.1977), the court stated its reasons for placing the burden of persuasion on the employer. The court was concerned that if an employer did not have to prove a legitimate, nondiscriminatory reason for an action, the employer could compose fictitious, but legitimate, reasons for the action. The employee would then have to attempt "to prove that a reason without factual foundation — presumed true — was a pretext for discrimination." Id. at 1255. In Burdine v. Texas Department of Community Affairs, 608 F.2d 563, 567 (5th Cir.1979), vacated, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the court justified its holding in Turner by saying it stated the obvious: " 'articulating' a legitimate reason involves more than merely stating fictitious reasons; legally sufficient proof is needed before the trier of fact can find plaintiffs proof rebutted." Id. at 567 (emphasis in original). In response, the United States Supreme Court enumerated three reasons why the Fifth Circuit's expressed concerns should not control the outcome of the case, and why limiting the employer's burden to a production of evidence would not "unduly hinder the plaintiff." Burdine, 450 U.S. at 258, 101 S.Ct. at 1096, 67 L.Ed.2d at 218. First, the burden of production calls for "clear and reasonably specific" explanations. Id. (citations omitted). "This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded 'a full and fair opportunity' to demonstrate pretext." Id. Second, the employer has an incentive, if not the legal obligation, to persuade the factfinder that the employment decision was lawful. Id. Third, the already liberal federal discovery rules are further enhanced by an employee's access to Equal Employment Opportunity Commission investigative files. Id. We agree that concerns such as those expressed in Turner are unwarranted. We do not interpret Burdine as allowing an employer to compose fictitious, post-hoc justifications for an action taken against an employee. Rather, the employer must articulate legitimate business reasons existing at the time the employment decision was made and supported by admissible evidence. If the employer does so, the burden shifts back to the employee, who may attempt to prove that the preferred reasons are pretextual. Fridriksson, 642 P.2d at 808 n. 5. In this case, the evidence supported findings that ATU and IBEW articulated legitimate reasons for their decision to give differential wage increases and produced admissible evidence supporting those reasons. That evidence would allow the trier of fact rationally to conclude that discriminatory animus was not the motivating factor in the employment decision. ATU and IBEW met their burden under the law as clarified today. 1. Differential Wage Increase. a. ATU's Articulated Legitimate Business Reason: The Market Factors Defense. The evidence supports the trial court's finding that "[defendants rebutted the prima facie case through evidence that the decision at issue derived from considerations of relevant market factors and the realities of the collective bargaining process." The inquiry thus becomes whether the trial court's finding that the reasons were credible is clearly erroneous. Alaska Rule of Civil Procedure 52(a) provides that "[findings of fact shall not be set aside unless clearly erroneous" when an action has been tried to a court without a jury. This court has explained the standard as follows: "A finding of fact is clearly erroneous only when this court is left with the firm and definite conviction on the entire record that a mistake has been made." Stanton v. Fuchs, 660 P.2d 1197, 1198 (Alaska 1983) (citations omitted). The trial court determined in findings of fact # 39-44 that —In the course of negotiating the 1975 contract, ATU management was influenced by a variety of factors. Among those factors was the tremendous growth that occurred in Anchorage in connection with the construction of the Trans-Alaska pipeline, and other petroleum and resource related developments. (#39) —At the same time that demand for telephone services in Anchorage increased dramatically, competition for the supply of persons qualified to provide such services likewise increased. (#41) —ATU felt the effects of this competition to an unusual degree for several reasons. First, the company responsible for construction of the pipeline communication system was based in Anchorage and could be expected to recruit actively in the Anchorage area. Second, some of the pipeline communication work required advanced telephone craft skills. ATU, because of its increasing service to businesses who desired sophisticated private switchboard systems, had among its employees more personnel trained in these areas than most other utilities operating in the state. (# 43) —Attempts by ATU to enlarge the pool of available craft employees in the state were generally unsuccessful. Specifically ATU management contacted over 200 journeymen who had completed instruction conducted by the manufacturer of much of the equipment utilized by ATU. In this communication ATU outlined the pay and benefits available to its employees. Only two of the 200 persons contacted responded. (#44) Thomas acknowledges the expansion of ATU services during the pipeline years but contends that there was no proof that: (1) ATU had reason to believe skilled workers would leave for the pipeline; (2) any workers did actually leave for the pipeline; (3) such concerns were a major factor in negotiations; (4) IBEW did not provide craft workers when ATU requested them. Keeping in mind the clearly erroneous standard which governs this court's review of the trial court's findings of fact, the record as a whole contains support for the findings. There is evidence that the number of telephones in Anchorage exploded between 1970 (21,300) and 1978 (135,000). ATU had trouble meeting the burgeoning demand; residential and commercial installations were delayed and ATU had a generally poor community reputation as of 1974-1975. ATU attempted to improve its operations, but had trouble hiring technicians to come to Anchorage. Expert testimony established that the pipeline construction caused significant competition for certain types of skilled workers in Anchorage. At least one specific ATU effort to recruit skilled workers was a dismal failure. When the negotiations for the 1975 Agreement got underway, the ATU team knew of the increased demand for skilled plant workers. Further testimony established that ATU had lost some technicians directly to pipeline work. By comparison, ATU had little difficulty hiring TCC workers. ATU claims that part of the reason for this difference was the relatively short time required to train employees for these positions as opposed to the plant positions. For example, a commercial representative could be trained in four weeks, an operator in two months. In contrast, a journeyman in plant forces required four years of technical training in an apprenticeship program. Thomas challenges the validity of this defense. Thomas argues that a "defendant should not be permitted to 'create' a market rate for a particular job, and then use that artificial market rate as a justification for lower wages for other employees." She makes the point in reference to a claim that the IBEW effectively controlled wages for all electrical workers in the state, and that IBEW's determination of a job's value should not be accepted as a true indication of value. In this case, however, ATU does not invoke the defense to justify payment of different base wages, but rather to explain a differential percentage wage increase. It points to specific conditions existing at the time the increase was negotiated which necessitated a higher wage increase for plant workers. Under these circumstances, we believe ATU's need to recruit trained plant workers, in the face of a burgeoning demand for phone services and stiff competition from other employers for skilled employees, constitutes a legitimate business reason for negotiating different wage increases. ATU thus met its burden. b. Thomas' Rebuttal. The trial court found that the "plaintiffs have failed to prove, that it is more likely than not, that defendants' explanations or justification for the provisions of the 1975 contract, specifically in- eluding the wage terms, are 'pretextual' or unworthy of credence." Thomas alleges that ATU could have attempted to break down each broad employment classification, e.g., plant forces, and could have sought higher raises only for those particular groups, e.g., the skilled crafts, for whom there was a special demand. She argues that special demand did not exist for every member of the plant forces, e.g., warehousemen. Therefore, the raise awarded to all plant forces was arranged to benefit the men at the expense of the women. We are not persuaded that the trial court was clearly erroneous in finding that Thomas failed to prove that ATU's market factors defense was merely a pretext for intentional discrimination. 2. Terms and Conditions of Employment. In addition to attacking the wage increase, Thomas maintains that four terms and conditions of employment contained in the 1975 Agreement discriminated against women. First, she challenges lunch hour provisions which gave men more paid lunch time than women. Second, she claims that men received better pay terms for shift differentials. Third, she asserted that starting pay levels were different for men and women. Fourth, she objects to the provision of life insurance based on an employee's salary; this meant that "men in higher paying Plant jobs received more life insurance benefits than TCC women in lower paying jobs." Regarding lunch pay provisions, the trial court found as follows: Under the 1975 contract, certain divisions of plant forces received the right to a paid lunch. The employees receiving this benefit were construction and installation employees whose work required them to travel some distance from the central ATU offices. Under prior procedure, apparently because of certain apprehensions of the city relating to . liability, these employees had been entitled to return to the central office on company time for lunch. In some cases, this nonproductive travel time to and from the work site amounted to an hour or two hours a day. The 1975 contract provision for paid lunch was regarded by ATU management as an improvement over the prior situation, though not ideal. Other divisions, including the operators on certain shifts, likewise received paid meal times. There is evidence in the record to support the finding that prior to 1975 installation workers — men—were permitted to drive to ATU's central facility from the worksite for lunch on company time. This resulted in lengthy, paid "lunch" periods. The allowance for 30 minutes of paid lunch at the worksite was the compromise reached in the 1975 Agreement to stop abuses associated with long drives to ATU headquarters. This is a legitimate business reason for the paid lunch these workers received. Regarding shift differentials, the trial court found: The 1975 contract provided for a 10% pay differential for plant employees in cases where those employees were required to work outside a regular shift. The employer retained control over the scheduling of shifts so that this differential was paid, if at all, only when extra shift labor was required on a temporary or emergency basis. Shift differentials were also provided for other classes of employees, notably operators. For operators, the differential was paid with respect to hours worked outside regular shift hours. Shifts for operators were scheduled on a 24-hour basis so that operators working nonstandard shifts received the 10% shift differential on a regular basis. The shift differential gave plant forces 10% extra of the basic hourly wage for all hours worked outside, as well as inside, their regular shift. This contrasts with the shift differential available to traffic: 10% extra of the basic hourly wage only for those hours worked outside a regular day. Nothing in the record contradicts the trial court's findings that the "advantageous" shift differential was paid to plant forces only on a temporary or emergency basis, while traffic received their "less advantageous" shift differential regularly. We agree that the distinction between "temporary" and "regular" availability of the varying shift differentials supports a legitimate business reason for the disparity. Thomas and Marilyn Centoni argue that when experienced TCC employees [predominately female] left ATU and returned they were required to wait the entire probationary period before receiving the full wage rate, despite the fact that initially they could be trained in a relatively short time. The plant employees [predominately male], however, started at the full wage rate whether or not they had previous experience at ATU. Regarding starting pay provisions, the trial court found: The contract provided that employees in the traffic and commercial sections would be hired at a probationary level, reaching full pay after one year of service. The rationale stated by management for this arrangement was the need to familiarize those employees with the particular aspects of operations at ATU. Fully qualified craft personnel began employment at the full beginning rate. Such personnel, for the most part, had undergone a four year apprenticeship program in their particular craft. During the apprenticeship period an employee was paid substantially less than the beginning craft wage, with increases as the employee approached the end of the apprenticeship period. Within the commercial section the requirement of beginning at a probationary pay rate was applied evenly to male and female employees, specifically, Joe Loera and Marilyn Centoni. The trial court and ATU misconstrued Thomas' argument. ATU argued that plant employees had to undergo four years of low-pay training before hire, while TCC employees had training periods of up to several months after hire. The trial court found that men and women within TCC had to wait before earning top scale wages. Neither response addresses Thomas' claim. The issue here is not whether men and women within the same department had to wait different periods of time to receive full wages, nor is it that only TCC employees had to undergo a training period. Rather, Thomas claims that the plant employees who left and returned to ATU earned full contract wages upon their return, while returning TCC employees had to wait a year before earning full contract wages despite their previous experience at ATU. In view of the trial court's misconstruction of Thomas' argument, and the resulting failure to address whether ATU has articulated a legitimate business reason for the disparate treatment of plant employees and TCC employees with regard to starting pay levels upon rehire, judgment against Thomas on this issue must be reversed and the case remanded for further proceedings. On remand the trial court may proceed on the evidence previously presented or take additional evidence. Finally, the trial court noted that all benefits were provided equally to employees regardless of salary with one exception. "Only employee life insurance, as a matter of city-wide policy, was a function of annual salary." The record contains evidence that this is standard practice and eases administration of insurance benefits. Thomas makes the bold assertion that such a provision is discriminatory without offering any reasons or cases to support the contention. We conclude that the trial court correctly found that the insurance plan is supported by legitimate business reasons. B. DISPARATE IMPACT ANALYSIS. Thomas argues that the court erred in concluding as a matter of law that her claim could not be brought under a disparate impact theory. Disparate impact differs from disparate treatment because it does not require a showing of intent. "[G]ood intent or absence of discriminatory intent does not redeem employment procedures . that operate as 'built-in headwinds' for minority groups...." Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158, 165 (1971). Under a disparate impact theory, an employee can challenge a facially neutral employment act, practice or policy that has a significant discriminatory impact and is not justified by business necessity. Id.; see also Teamsters, 431 U.S. at 349, 97 S.Ct. at 1861, 52 L.Ed.2d at 423. This is the first time we have addressed the application of disparate impact theory to a claim of discrimination under AS 18.-80.220. Therefore, we must determine the proper analytical framework for a disparate impact claim. The United States Supreme Court has established a tripartite analysis for disparate impact claims. To present a prima facie case of discrimination, the employee must show that a facially neutral employment act, practice, or policy has a significant discriminatory impact on a protected group. Teamsters, 431 U.S. at 349, 97 S.Ct. at 1861, 52 L.Ed.2d at 423. Once the employee has made this showing, the employer has the burden of proving that his or her actions are justified by a business necessity or job-relatedness. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280, 300-01 (1975); Griggs, 401 U.S. at 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165. The employer has the burden of persuasion on this issue. If the employer establishes a business necessity or job-relatedness, then the employee has an opportunity to prove that other acts or practices could accomplish the employer's legitimate interest with a less discriminatory impact. Albermarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375, 45 L.Ed.2d at 301. We adopt this analysis for claims of discrimination brought under a disparate impact theory. The trial court held that Thomas failed as a matter of law to present a claim under a disparate impact theory for three reasons. After noting that this case does not fit within the "typical" disparate impact claim which often involves an employer's initial hire or promotional procedures, the trial court concluded that Thomas was challenging the entire collective bargaining process, which the trial court believed to be too broad in scope to constitute a specific act, practice or policy under a disparate impact theory. It also concluded that the disparate impact theory was inappropriate since it has not been utilized in comparable worth discrimination actions. We agree in part with the trial court's conclusions, but focus on a more basic flaw in Thomas' claim. We agree with the trial court that this claim does not fit neatly within the "typical" disparate impact model since it does not involve hire, promotion or job classification practices. See, e.g., Griggs, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (high school diploma and intelligence test requirements challenged); Teamsters, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (seniority system challenged). But because a fact pattern fails to fall within the "typical" disparate impact paradigm does not alone compel the conclusion that it can never constitute disparate impact as a matter of law. We adopt the rationale of the Fourth Circuit, stated in Wright v. Olin, 697 F.2d 1172 (4th Cir. 1982), that "these theories [of disparate treatment and disparate impact] were not expected nor intended to operate with rigid precision with respect to the infinite variety of factual patterns that would emerge in Title VII litigation." Id. at 1184. We believe that an expansive application of the disparate impact theory comports with the strong purposes behind AS 18.80.220. As noted by the trial court, this court has repeatedly stated that "AS 18.80.220 is not only 'modeled on' the federal law, thus making federal case law relevant . but is intended to be more broadly interpreted than federal law to further the goal of eradication of discrimination." Wondzell v. Alaska Wood Products, Inc., 601 P.2d 584, 585 (Alaska 1979) (citations omitted), cert. denied, 444 U.S. 1040, 100 S.Ct. 724, 62 L.Ed.2d 726 (1980). In light of "the strong statement of purpose in enacting AS 18.80 and the legislature's intent "to put as many 'teeth' into the [statute] as possible," McLean v. State, 583 P.2d 867, 869 (Alaska 1978), quoting Loomis Electronics Protection, Inc. v. Schaefer, 549 P.2d 1341, 1343 (Alaska 1976), we cannot conclude that the disparate impact theory is limited to an employer's hire and promotion practices. Thomas' disparate impact claim fails, however, not because it is atypical, but rather because her claim does not meet the tripartite analysis set forth for analyzing such claims. The trial court concluded that Thomas was challenging the entire collective bargaining process leading up to the 1975 contract under a disparate impact theory. We do not view her claim in this light. At the core of Thomas' claim is the disparity between the negotiated wage increase received by male-dominated groups and female-dominated groups. It is our view that this challenge, which Thomas claims is to a facially neutral employer act, practice or policy, in actuality presents a challenge to a nonfacially neutral employer act, practice or policy. As such, it does not meet the first prong of the tripartite test. ATU and IBEW's negotiated wage increase resulted in ATU overtly treating one group of people (the female-dominated group) less favorably than another group (the male-dominated group), thereby resulting in a discriminatory impact on the protected group. In our opinion, this is a quintessential disparate treatment claim requiring a showing of discriminatory intent on the part of the employer. Thomas' disparate impact claim fails because she is clearly challenging an employer act, practice or policy with not even a pretense of facial neutrality. In conclusion, we affirm the ruling of the trial court that Thomas did not present a claim under a disparate impact theory. C. IBEW DID NOT BREACH ITS DUTY OF FAIR REPRESENTATION. This court has recognized that the resolution of issues arising under federal labor law is governed by such law. See, e.g., Wondzell, 601 P.2d 584; International Brotherhood of Teamsters, Local 959 v. King, 572 P.2d 1168 (Alaska 1977). Because IBEW falls under the purview of the National Labor Relations Act as the sole bargaining representative of ATU employees in 1975, federal law will determine the nature of IBEW's duty of fair representation and whether it breached that duty. A labor organization need not satisfy fully every member it represents. Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1057-58 (1953). Differences in terms and conditions negotiated for different employees are not per se invalid. Id. at 338, 73 S.Ct. at 686, 97 L.Ed. at 1058. The bargaining unit crosses the line dividing appropriate and inappropriate conduct when it makes negotiating decisions affecting particular members which are arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903,17 L.Ed.2d 842 (1967). In other words, the duty of fair representation does not require that a union attain equality of benefits. Toensing v. Brown, 528 F.2d 69, 72 (9th Cir.1975). See also Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 173 n. 12, 92 S.Ct. 383, 394 n. 12, 30 L.Ed.2d 341, 354 at n. 12 (1971). A bargaining unit must, however, give fair consideration to the views of minority members. NLRB v. Local 315, International Brotherhood of Teamsters, 545 F.2d 1173, 1175 (9th Cir.1976). The bargaining representative must have valid reasons for differentiating in its treatment of groups of employees, see Kling v. NLRB, 503 F.2d 1044, 1046 (9th Cir.1975), yet it also must be allowed a wide range of reasonableness to serve the unit it represents. Ford Motor Co., 345 U.S. at 338, 73 S.Ct. at 686, 97 L.Ed. at 1058. For IBEW to be liable for a breach of its duty of fair representation, Thomas must prove that its conduct was arbitrary, discriminatory or in bad faith. See Vaca, 386 U.S. at 193, 87 S.Ct. at 918, 17 L.Ed.2d at 859. Thomas alleged generally that IBEW denied her fair representation during contract negotiations because the final collective bargaining agreement established wages, working conditions, hiring practices and other provisions which discriminated on the basis of sex. "Allegations in a complaint alleging a breach of a union's duty of fair representation must contain more than conclusory statements alleging improper representation." Williams v. General Foods Corp., 492 F.2d 399, 405 (7th Cir.1974), quoting Lusk v. Eastern Products Corp., 427 F.2d 705, 708 (4th Cir.1970). The plaintiff must state supporting facts showing discriminatory conduct. Williams, 492 F.2d at 405. We agree that Thomas did not present facts that would support a finding that the union's conduct was arbitrary, discriminatory or in bad faith. Her general allegations were insufficient to meet the burden of proving that IBEW breached its duty of fair representation. D. IBEW'S LIABILITY UNDER AS 18.80.220 FOR DISPARATE TREATMENT AND DISPARATE IMPACT. AS 18.80.220, like Title VII, prohibits unlawful discrimination by unions as well as by employers. See McDonald v. Santa Fe Transportation Co., 427 U.S. 273, 284-85, 96 S.Ct. 2574, 2581-82, 49 L.Ed.2d 493, 503 (1976). "A union's role as a joint participant in the negotiation of a collective bargaining agreement has been found sufficient to render it liable under Title VII where the contracted provisions were discriminatory in operation or perpetuated the effects of past discrimination." Farmer v. ARA Services, Inc., 660 F.2d 1096, 1104 (6th Cir.1981) (citations omitted). Additionally, a union may be liable under Title VII for acquiescing in discriminatory noncontractual policies or conduct on the part of the employer. See McDonald, 427 U.S. at 285, 96 S.Ct. at 2581, 49 L.Ed.2d at 503; Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 989 (D.C.Cir.1973). The theories of disparate treatment and disparate impact, therefore, apply to Thomas' claims against IBEW. See, e.g., Jackson v. Seaboard Coast Line Railroad Co., 678 F.2d 992, 1014 (11th Cir.1982); Golden v. Local 55 of the International Association of Firefighters, 633 F.2d 817, 820-21 (9th Cir.1980). IBEW's defenses to the claims of discrimination mirror those of ATU. Under the disparate treatment analysis, IBEW has successfully rebutted Thomas' prima facie claims of discrimination based on differential wage increases, lunch hour provisions, shift differentials and life insurance benefits. See supra DISCUSSION II. Thomas failed to establish that IBEW's defenses were pretextual. However, Thomas makes the same argument against IBEW as against ATU — that the starting pay level provision for rehires is discriminatory in operation in that experienced TCC employees must retrain and wait a year before earning full contract wages when returning to ATU, while experienced plant employees earn full contract wages immediately upon return. IBEW, like ATU, argued below that plant employees had to undergo a four year training period before hire while TCC employees had a much shorter training period on the job. IBEW also argued that the provision was a management requirement and established at ATU's request. Although the contract provision for starting pay may not be discriminatory, and may have indeed been implemented at ATU's request, it will nevertheless be incumbent upon IBEW to rebut Thomas' claim. IBEW's argument that the provision was instituted at ATU's request would not relieve it from liability since unions can be held liable for unlawful discrimination where the union acquiesces to a contract provision which is discriminatory in operation. Farmer, 660 F.2d at 1104. Therefore, we likewise remand Thomas' claim of intentional discrimination by IBEW with respect to the rehire starting pay level issues for appropriate disposition. This case is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. Based on our disposition of the appeal, we vacate the award of attorney's fees to ATU and attorney's fees and costs to IBEW. . For a commentator's pre-decision analysis of some of the issues presented in this case, see Thomas v. Anchorage Telephone Utility: Alaska Tackles Gender-based Wage Discrimination, IV Alaska L.Rev. 71 (1987). . AS 18.80.220(a)(1) provides that it is unlawful for an employer to refuse employment to a person, or to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his race, religion, color or national origin, or because of his age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood when the reasonable demands of the position do not require distinction on the basis of age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood. .Thomas' claim does not involve equal pay for equal work or work of comparable worth. . The class claims were originally accompanied by individual claims. Some of the latter were dismissed before trial on statute of limitation grounds. Those dismissals were listed in the points on appeal. Appellants have failed to brief the claims dismissed on statute of limitations grounds. As a result, these issues are considered abandoned and require no examination on appeal. Jeffries v. Glacier State Telephone Co., 604 P.2d 4, 7 n. 8 (Alaska 1979); Sullivan v. Municipality of Anchorage, 577 P.2d 1070, 1071 n. 1 (Alaska 1978). Another individual claim (Marilyn Centoni's) was tried. The court held that Centoni failed to establish a prima facie case of discrimination. That decision was also listed as a point on appeal. Appellants argue in their reply brief that they preserved Centoni's claim when they stated in their opening brief that they appeal "from the dismissal of the individual claim of Marilyn Centoni which was part of the class contract claim." We will address Centoni's claim together with the class claim, since they are the same. . See Fossey, Employment Discrimination Law — Strand v. Petersburg Public School and Fridriksson v. Alaska USA Federal Credit Union: The Supreme Court Charts an Uncertain Course, 1 Alaska L.Rev. 53, 63-71 (1984). . See Employer Defenses in Employment Discrimination Litigation: A Reassessment of Burdens of Proof and Substantive Standards Following Texas Department of Community Affairs v. Burdine, 55 Temp.L.Q. 372, 375-80 (1982). . Our decision in Strand v. Petersburg Public Schools, 659 P.2d 1218 (Alaska 1983) is not inconsistent with today's decision. Examining the Strand opinion makes it plain that we focused not on burdens of proof, but on the substantiality of the evidence to support the Human Rights Commission's finding of discrimination. Strand did not answer the question confronted today. .Turner was later overruled by Burdine v. Texas Dept. of Community Affairs, 647 F.2d 513 (5th Cir.1981). We cite Turner to illustrate some courts' concerns about giving defendants only a burden of production. . ATU and IBEW also justified the higher wage increase for plant employees by claiming that they provided equal benefits to all employees. We do not address the benefits defense due to our conclusion that market factors constitute a legitimate reason for negotiating differential wage increases. . Under the 1975 agreement, TCC employees must work through two lower step pay rates for a period of one year before receiving the full contract rate. . The trial court dismissed Marilyn Centoni's claim that women as a group were denied leaves of absence without pay while men were granted leaves of absence without pay. It did not specifically address Marilyn Centoni's claim as to the two step pay increases for rehired TCC employees. . In establishing a prima facie case, employees can rely upon statistical evidence. E.g., Griggs, 401 U.S. at 430 n. 6, 91 S.Ct. at 853 n. 6, 28 L.Ed.2d at 163 n. 6; Dothard v. Rawlinson, 433 U.S. 321, 329-31, 97 S.Ct. 2720, 2726-28, 53 L.Ed.2d 786, 797-98 (1977). The employer can rebut employee's prima facie statistical case by introducing more probative statistical analysis, by demonstrating inaccuracies or deficiencies in employee's statistical evidence or by establishing that the disparity shown by employee's statistics is not significant. See, e.g., Dothard, 433 U.S. at 331, 97 S.Ct. at 2727, 53 L.Ed.2d at 798; Bauer v. Bailar, 647 F.2d 1037, 1043 (10th Cir.1981). . A majority of federal courts hold that the burden of persuasion shifts to the employer when showing business necessity. See, e.g., Wright v. Olin Corp., 697 F.2d 1172, 1190 (4th Cir.1982); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1303 (9th Cir.1982), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 838 (1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1015 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Ramirez v. Hofheinz, 619 F.2d 442, 446 (5th Cir.1980). But see N.A.A.C.P. v. Medical Center, Inc., 657 F.2d 1322, 1333-35 (3d Cir.1981) (en banc) (in disparate impact case, plaintiff carries burden of persuasion at all times). There has been some confusion on this issue after Burdine in which the Supreme Court held that plaintiff carried the burden of persuasion at all times in a disparate treatment case. However, the Supreme Court explicitly noted in Bur-dine that "the factual issues, and therefore the character of the evidence presented, differ when plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes." 450 U.S. at 252 n. 5, 101 S.Ct. at 1093 n. 5, 67 L.Ed.2d at 215 n. 5. The Supreme Court has not explicitly or implicitly suggested that the Burdine allocation applies in disparate impact cases. . AS 18.80.200(b) provides in pertinent part: [i]t is the policy of the state and the purpose of this chapter to eliminate and prevent discrimination in employment, . because of race, religion, color, national origin, sex, age, marital status, changes in marital status, pregnancy or parenthood.... . We do not here address whether a comparable worth theory may form the basis for a disparate impact claim under our statutes, since the parties specifically denied bringing this case under a comparable worth theory. The question of wage restructuring or job reclassification between the male and female-dominated groups is not at issue here. . It may seem anomalous that ATU may have violated AS 18.80.220 with respect to the starting pay provision and yet IBEW did not breach its duty of fair representation. However, the results differ because the employee's burden of proof on a duty of fair representation claim differs from that in a disparate treatment claim. Thomas estabished a prima facie case under the McDonnell Douglas formula. ATU must now articulate a legitimate business reason. Under the duty of fair representation analysis, however, Thomas must prove that IBEW's actions exceeded the wide range of reasonableness within which a union can conduct negotiations. A plaintiffs initial burden to establish a prima facie case under disparate treatment is less than the burden of proving that a union breached its duty of fair representation. . It also may seem anomalous that IBEW may be liable for violating AS 18.80.220 and not have breached its duty of fair representation. The difference is in Thomas' burden of proof under disparate treatment as compared to a duty of fair representation claim. See supra note 15. . We do not address or indicate whether we would adopt the federal rule on attorney's fees. The federal courts hold that attorney's fees may not be assessed against a losing plaintiff in a Title VII civil rights action unless the case is frivolous, unreasonable or groundless, or is brought or continued in bad faith. See, e.g., Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648, 657 (1978).

10403443

Mark C. DEGLER, Appellant, v. STATE of Alaska, Appellee

Degler v. State

1987-08-21

No. A-1139

659

662

741 P.2d 659

741

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Mark C. DEGLER, Appellant, v. STATE of Alaska, Appellee.

Mark C. DEGLER, Appellant, v. STATE of Alaska, Appellee. No. A-1139. Court of Appeals of Alaska. Aug. 21, 1987. Rehearing Denied Sept. 10, 1987. R. Scott Taylor, Asst. Public Defender, Kotzebue, and Dana Fabe, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.

1592

9845

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge. A jury convicted Mark C. Degler of first-degree robbery. AS 11.41.500(a)(1). Superior Court Judge James A. Hanson sentenced Degler to a seven-year presumptive term. AS 12.55.125(c)(2). Degler appeals, contending that Judge Hanson erred in rejecting Degler's proposed mitigating factors, and in refusing to send Degler's case to the three-judge panel. Degler also appeals Judge Hanson's refusal to instruct the jury on the defenses of necessity and duress. Degler's conviction arose from his robbery of an Anchorage restaurant. Degler had entered the restaurant, pointed a gun at the cashier, and demanded that she put all the money in a bag. Prior to handing over any money, the telephone behind the cashier's counter rang. The cashier instinctively turned to answer it. When she turned back, Degler was walking out of the restaurant. The police were called, and Degler was apprehended a short time later. At trial, Degler sought a preliminary ruling from the court on whether he would be allowed to present a necessity defense and whether the jury would be instructed on that defense. Degler made an offer of proof, proposing to call a series of witnesses. Degler's witnesses, including himself, would testify that he desperately needed money in order to fly to Idaho to attend a custody hearing. Degler had legal custody of his daughter. Degler's sister was raising the child in Idaho until Degler was financially settled in Alaska. Degler's ex-wife was attempting to gain custody of their child by instituting the Idaho proceedings. Degler feared that his wife might try to kidnap the child. He believed that his ex-wife could not provide a safe home and that she was having drug and alcohol problems. Degler offered to show that he was desperate for money because his employer had gone bankrupt. Degler continued to work for the employer based on a promise that the employer would provide a free flight to Idaho. The flight fell through. Degler then went to work for another company, whose financial problems prevented it from paying him. Degler sold his possessions. However, he did not ask his family for money. Feeling desperate, Degler attempted to obtain money through robbery. After the offer of proof, Judge Hanson ruled that the defenses of necessity and duress were not available to Degler. Therefore, he also ruled that the evidence offered would not be allowed. The jury ultimately found Degler guilty of first-degree robbery. The defense of duress requires a showing that "the defendant was coerced to [commit the offense] by the use of unlawful force upon the defendant or a third person_" AS 11.81.440; Cleveland v. Anchorage, 631 P.2d 1073,1078-79 (Alaska 1981). Degler has failed to produce any evidence which supports a finding that the robbery was compelled by the use of unlawful force. Necessity is an affirmative defense, which the defendant must prove by a preponderance of the evidence. AS 11.81.320; AS 11.81.900(b)(1)(B). To justify an instruction on necessity, a defendant must present "some evidence" which places the defense in issue. AS 11.81.900(b)(1)(A); Schnabel v. State, 663 P.2d 960, 966 (Alaska App.1983). The earliest Alaska case on necessity is Nelson v. State, 597 P.2d 977 (Alaska 1979). Nelson "borrowed" a dump truck and a front-end loader from a highway department yard to get his truck out of a ditch. The court found against Nelson on the necessity issue, but said: The defense of necessity may be raised if the defendant's actions, although viola-tive of the law, were necessary to prevent an even greater harm from occurring. Commentators generally agree that there are three essential elements to the defense: 1) the act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disportionate to the harm avoided. 597 P.2d at 979 (emphasis added). In Gerlach v. State, 699 P.2d 358 (Alaska App.1985), this court addressed the question of whether the pressures which child custody disputes induce can justify a necessity defense instruction. In that case, a mother took her child, over whom she did not have legal custody, and hid the child from its father for more than a year. 699 P.2d at 359. We held that the mother's fears that the child was being physically abused and neglected did not warrant a necessity defense instruction at the mother's trial on custodial interference charges. We reached this conclusion because the defendant had several alternative legal courses of action available which she failed to exhaust before resorting to unlawful self-help. 699 P.2d at 361-63. It is uncontested that Degler did not ask his family for money. Also, there is no evidence that he asked any friends for assistance. Degler, therefore, did not exhaust all his lawful alternatives. Degler has also failed to show what "significant evil" he hoped to prevent. He has not contended that the proceedings in Idaho were unlawful, or that their outcome would necessarily be harmful. On this record, Degler has failed to produce "some evidence" of a necessity defense. We find, therefore, that Judge Hanson did not err in ruling that Degler could not introduce the offered evidence, and that the jury would not be instructed on the affirmative defenses. Degler next contends that Judge Hanson erred in rejecting three of his proposed mitigating factors. Mitigating factors must be established by clear and convincing evidence. AS 12.55.155(f). The trial court's rejection of a mitigating factor will be affirmed unless clearly erroneous. Davis v. State, 706 P.2d 1198, 1201 (Alaska App.1985). The first factor proposed was that the offense was committed "under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but which significantly affected the defendant's conduct." AS 12.55.-155(d)(3). At sentencing, in support of this mitigator, Degler relied on the evidence which he had offered previously on his affirmative defenses. Judge Hanson stated that any child custody matter involves a certain amount of duress and compulsion. However, he essentially found that pointing guns at people to get money was a disproportionate reaction and atypical. We find that Judge Hanson was not clearly erroneous in rejecting this mitigator. Degler also argued that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense." AS 12.55.155(d)(9). Under former AS 11.15.240, Degler's conduct would have constituted an attempted robbery. The current robbery statutes define the conduct of "taking or attempting to take property from the immediate presence and control of another" as robbery. AS 11.41.510 (emphasis added). De-gler contends that an attempt has historically been considered less serious than a completed act of robbery. Therefore, he argues, the mitigator of "least serious conduct" should apply. It can be argued that the reason attempted robbery was formerly a separate and less serious crime is because the conduct is inherently less harmful. However, robbery is essentially a crime against the person; it is not a property offense. Nell v. State, 642 P.2d 1361, 1365-66 and n. 6 (Alaska App.1982). In the instant case, Degler pointed a loaded gun at the victim. The potential harm created by Degler's conduct was not lessened because he received no property. Therefore, Judge Hanson was not clearly erroneous in rejecting this mitigator. Degler also argued that he was "motivated to commit the offense solely by an overwhelming compulsion to provide for emergency necessities for [his] immediate family." AS 12.55.155(d)(ll). Degler cites no authority to support this mitigator. He simply argues that "[n]o motive for the crime was even suggested, other that [sic] Mr. Degler's desperate desire to provide a decent home for his daughter...." Judge Hanson rejected this mitigator, stating that AS 12.55.155(d)(ll) contemplated necessities such ar food or water; it did not include the desire to attend a future court proceeding. We find that Judge Hanson properly rejected this mitigator. Finally, relying on Dancer v. State, 715 P.2d 1174 (Alaska App.1986), Degler argues that Judge Hanson erred in refusing to refer his case to the three-judge panel. In Dancer, the sentencing judge indicated that he believed that the presumptive sentence which applied to Dancer was unjust, yet refused to send the case to the panel because he had "concluded that referral would be futile." This court held that the trial court's refusal to refer Dancer's case to the three-judge panel was plain error. 715 P.2d at 1183. In Degler's case, Judge Hanson apparently found that the presumptive sentence was manifestly unjust. Judge Hanson remarked, "I find that . being required in this case to give Mr. Degler, as I've come to know him, 7 years simply makes no sense to me." Given these remarks, we conclude that this case is controlled by Dancer. We therefore find that Judge Hanson was required to send Degler's case to the three-judge panel along with his recommendations and findings. AS 12.55.-165-.176; Lloyd v. State, 672 P.2d 152, 154-55 (Alaska App.1983). The conviction is AFFIRMED; the sentence is VACATED, and this case is REMANDED to the superior court with directions to enter an order referring the matter to the three-judge panel.

10409945

STATE of Alaska, Petitioner, v. James M. STOCKER, Respondent

State v. Stocker

1987-09-04

No. A-2099

1215

1217

741 P.2d 1215

741

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

STATE of Alaska, Petitioner, v. James M. STOCKER, Respondent.

STATE of Alaska, Petitioner, v. James M. STOCKER, Respondent. No. A-2099. Court of Appeals of Alaska. Sept. 4, 1987. Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for petitioner. James M. Stocker, pro se. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

863

5254

SINGLETON, Judge. OPINION James Stocker was charged with driving while intoxicated and refusal to submit to a chemical test of breath. Stocker waived counsel and had a jury trial before District Court Judge Elaine Andrews in Palmer, on April 8 and 9, 1986. He was convicted and sentence was imposed on April 9,1986. On its own motion, the court stayed execution of sentence, effective April 9, 1986, "to allow the court to review a transcript of the pretrial rulings in light of the testimony that was admitted at trial in order to determine whether or not the defendant was granted a fair trial." On December 19,1986, Judge Andrews issued an order in which she concluded that Stocker had a fair trial. She consequently vacated the stay and set the matter for status hearing at Palmer on January 9, 1987. At that hearing, Stocker moved to dismiss based upon post-trial delay. Judge Peter Ashman concluded that the eight-month delay between imposition of sentence and execution of sentence served to deny Stocker his constitutional right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972); Gonzales v. State, 582 P.2d 630, 632 (Alaska 1978). He therefore vacated the judgment of conviction and sentence imposed against Stocker and dismissed the complaint with prejudice. The state petitioned for review in the superior court. Superior Court Judge Beverly W. Cutler denied the petition for review, concluding that Judge Ashman's decision was a final order not subject to a petition for review in the superior court. The state has petitioned this court for review of Judge Cutler's order. We grant the state's petition and find that Judge Cutler did have discretion to hear the petition for review. We therefore vacate her order and remand the case to the superior court to enable her to exercise her discretion in determining whether to hear the state's petition for review of Judge Ash-man's decision. In Kott v. State, 678 P.2d 386 (Alaska 1984), the supreme court held that with limited exceptions the state could not appeal an adverse final judgment in a criminal proceeding regardless of whether an appeal would be barred by the double jeopardy provisions of the state and federal constitutions. 678 P.2d at 388-90. The court noted, however, that where review was not barred by considerations of double jeopardy, the state could seek discretionary review of an adverse final order by means of a petition for review. Id. at 390-91. Judge Cutler acknowledged Kott, but concluded that review of final orders of the district court was exclusively within the discretion of the court of appeals and not the superior court. She reached this conclusion by contrasting Alaska Appellate Rule 402, which governs petitions for review of nonappealable orders or decisions to the court of appeals, with Appellate Rule 610, which governs petitions for review of interlocutory orders or decisions in the superior court. In Judge Cutler's view, the supreme court's reference to orders not appealable in Rule 402 was broad enough to include final orders, which were not ap-pealable, while the reference to interlocutory orders in Appellate Rule 610 necessarily precluded review of final orders. We acknowledge that the supreme court has used different words in the two rules. Whether those different words connote a different intent is a question that requires a process akin to statutory interpretation. Reading the rules together, in light of the supreme court's decision in Kott, we conclude that the supreme court did not intend to permit petitions for review to the court of appeals under circumstances in which petitions for review to the superior court would not be available. In our view, just as the legislature intended to give each litigant adversely affected by a district court final judgment an option to appeal to the court of appeals or to the superior court, so too did the supreme court intend to permit a litigant offended by a nonap-pealable order or decision of the district court to seek review in either the superior court or the court of appeals. We find nothing in the Kott decision to suggest that the supreme court might have preferred the court of appeals to the superior court as a destination for state petitions for review from adverse district court actions. We therefore conclude that the superior court, under Appellate Rule 610, has jurisdiction to consider petitions for review by the state from district court final orders as well as interlocutory orders. Naturally, the exercise of that discretion is governed by Appellate Rule. 610(b). The order of the superior court declining review is VACATED. This case is REMANDED to the superior court to exercise its discretion in determining whether to grant review of the district court order in question. . We express no opinion as to whether the superior court should grant review in this case.

10403354

Regina WADE, Personal Representative of the Estate of Gerald Wade, Deceased, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee

Wade v. Anchorage School District

1987-08-14

No. S-1819

634

641

741 P.2d 634

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Regina WADE, Personal Representative of the Estate of Gerald Wade, Deceased, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee.

Regina WADE, Personal Representative of the Estate of Gerald Wade, Deceased, Appellant, v. ANCHORAGE SCHOOL DISTRICT, Appellee. No. S-1819. Supreme Court of Alaska. Aug. 14, 1987. M. Ashley Dickerson, M. Ashley Dickerson, Inc., Anchorage, for appellant. Tasha Porcello, James M. Bendell and Associates, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4366

27044

OPINION MOORE, Justice. I. INTRODUCTION Appellant Gerald Wade was hired by ap-pellee Anchorage School District (ASD) as a security guard at Service High School in August 1977. Wade reported a wide range of real or imagined acts of racial, sexual and physical harassment on the job. Wade quit his job with the ASD upon the advice of his psychiatrist in December 1983. He then sought workers' compensation benefits for disability due to emotional stress and a back injury. The Alaska Workers' Compensation Board (the board) held that Wade was not entitled to compensation for either his back or stress injury. The superior court affirmed the board, holding that substantial evidence supported its decision. Wade has committed suicide; his estate appeals. In Fox v. Alascom, 718 P.2d 977, 982 (Alaska 1986), we rejected the use of objective threshold requirements for determining whether an employee's stress injury was caused by job-related stress. The board relied on one such requirement in rejecting Wade's stress claim. Therefore, we reverse the board's determination that the stress claim was not compensable. We remand the case to the board for determination of the appropriate award. We affirm the board's denial of Wade's back injury claim. II. PACTS AND PROCEEDINGS Gerald Wade, a black man, was hired as a Safety and Security/Home School Coordinator (essentially a school security guard) at Service High School by the Anchorage School District in August 1977. He had no prior history of psychiatric care. In March 1978, after making a "drug bust" at work, Wade experienced an overpowering malaise and felt he had to leave work at once. Wade immediately sought treatment; he was referred to a psychiatrist the same day. Wade's psychiatrist referred him to Dr. Enter for psychological testing. Dr. Enter first administered a Minnesota Multiphasic Personality Inventory (MMPI). The MMPI yielded a "technically invalid profile," indicating either an overt attempt to look bad, a plea for help, or psychosis. Dr. Enter then administered a Rorschach test and a sentence completion test, both standard projective psychological tests. The results "point[ed] toward psychotic processes." In August 1978, Wade began counseling at Ohlson Psychological Services with David Sandberg under the supervision of Dr. Ron Ohlson. Wade was treated for a "delayed grief reaction" and was diagnosed as having "an underlying paranoid personality disorder." Ohlson testified that Wade was under severe stress at work. Sand-berg also identified Wade's work stress as significant. Sandberg stated that nothing in Wade's psychological background that he was at liberty to discuss was as significant as his work in causing his problems. Wade apparently remained in counseling at the Ohlson Clinic until early 1984. Wade's school district performance evaluations in 1980 and 1981 rated him proficient or exceptional. Between 1979 and 1982, Wade compiled a number of positive recommendations from the faculty and staff of Service High. However, Wade believed that he was subject to extensive racial discrimination at Service. Wade filed a sexual harassment complaint with the ASD against a male coach who allegedly touched his buttocks on several occasions; the coach received a written reprimand for one such confirmed incident. The ASD investigating officer testified that the incident was described by the coach as an athlete's gesture after a good game. Wade was injured on the job on October 28, 1981 when he attempted to break up a fight between two students. He was kicked in the stomach by a karate-trained student. This incident was reported. In a prior unreported incident, Wade hurt his shoulder jumping out of the way of a truck driven by a student Wade had pursued for drug possession. Nevertheless, Wade worked as a construction laborer in summer 1983. In fall 1982, Wade accepted a transfer to Wendler Junior High. Wade complained about harassment at Wendler based on incidents which were flatly aenied by others or which appear simply harmless (e.g., music students practicing in the hall outside Wade's office). During the school year, his office-mate, a counselor, was fatally stabbed. Wade claimed that his co-workers accused him of the murder. He alleged incidents of harassment or discrimination; individuals involved denied the incidents. Wade was a very muscular man; he won the title "Mr. Alaska" in a 1983 body-building contest. His muscular body evidently intimidated at least one of his Wendler co-workers. Wade was transferred to Clark Junior High in fall 1983. He voluntarily terminated his employment with the ASD on December 1, 1983. The record is not clear concerning the events that led to Wade's termination. He seemed incoherent about this period during his testimony before the board. In January 1984, Dr. Ohlson stated in a letter to Wade's counsel that Wade's employment situation serves to enhance his experience of threat and paranoia, and recently he has been increasingly unable to separate reality from fantasy to the extent he can make rational decisions concerning his actions or behavior.... It is my opinion that this man should be immediately relieved from his present job on the basis of medical disability as a result of mental and emotional dysfunction that are at least contextually job related. Wade received an extensive series of treatments for shoulder and back problems in June 1984. He was referred to Dr. Wolf, a psychiatrist, by the Alaska Division of Vocational Rehabilitation in February 1984. Dr. Wolf diagnosed Wade as having "Axis I: Adjustment Reaction with Anxiety — Severe" and "Axis II: Paranoid Personality Disorder." He stated that "Wade has an underlying paranoid state that rises fairly frequently to the level of a psychosis, but not absolutely on an every moment basis." In letters to Wade's counsel, Dr. Wolf stated, "it is at this late date somewhat difficult to tell the exact origin of his condition. It certainly would appear both from his own reports and those of Ohlson Psychological Services that it arose out of circumstances surrounding his employment with the Anchorage School District." Wade initially filed for workers' compensation for stress-related disability in November 1983. The ASD contested his claim in December 1983. Wade amended his claim three times, adding a claim for a back injury and seeking additional disability compensation. In October 1984, the ASD agreed to pay Wade's medical bills and temporary total disability benefits in an interim settlement. In April 1985 the ASD petitioned the board to terminate Wade's benefits. After a hearing, the board granted the ASD's petition. The board held Wade's back injury claim time-barred under AS 23.30.105(a) because it was not filed until more than two years after the injury. In the alternative, it held that the ASD had overcome the presumption of compensability of AS 23.30.120(1) and that Wade had then failed to prove that the back injury was caused by his employment. A majority of the board then held that Wade had not suffered a compensable stress disability. The majority excused the late filing of the claim pursuant to AS 23.30.100(d)(2) because the nature of the injury precluded notice. The board held that a stress injury was compensable only if the worker suffered unusual stress not shared by others in the profession. The designated chairman of the panel dissented because he believed Wade was subject to unusual stress and that the stress substantially aggravated his condition. On appeal, the superior court upheld the board decision on both counts. Wade appeals. III. DISCUSSION A. Stress claim We recognized that a purely mental injury was compensable under Alaska workers' compensation law in Brown v. Northwest Airlines, 444 P.2d 529, 533 (Alaska 1968). In Brown, the employee's disabling injury was traumatic neurosis which was precipitated by an on-the-job fall. We held that a mental disability was compensable if a work-related accident aggravated, accelerated or combined with a pre-existing disease or infirmity to produce the disability. Id. In Fox v. Alascom, 718 P.2d 977, 978 (Alaska 1986), we held that mental disability due to non-traumatic, gradual work related stress was compensable. We also determined that no special rules or limitations would apply to the determination of whether a mental injury was compensable. Id. at 982. Instead, a mental injury claim "should be analyzed in the same way as any other claim for workers' compensation benefits." Id. at 984. Pox, a clerk, alleged that she was disabled by a nervous breakdown caused or brought on by the stress of her job. Her psychologist testified that she was not malingering and that in her mind the job was her only source of stress. He went on to state that, though her work relationships had created stress for her, many other factors in her life were more likely to be the "real sources" of her stress. Id. at 979. We reversed the board's ruling that Fox's disability was not compensable because the board failed to give Fox the presumption of compensability to which her evidence, by establishing a "preliminary link" between the job and the injury, entitled her. Id. at 984. We expressly reject ed the use of special limiting standards in determining mental stress claims. We specifically examined and rejected the "greater than all employees must experience" test; we also rejected "any other additional 'objective' threshold requirement." Id. at 982. We rejected the "honest perception" test proposed by Fox, by which the mental disability would be compensable if the employee honestly, even if mistakenly, perceived that job stress caused the disability. Id. at 983. The board found that Wade's evidence established a presumption of compensability, but that the ASD rebutted the presumption. The board then held that Wade failed to prove compensability because he failed to show that he experienced greater stress than was usual in the profession. The board also rejected Wade's expert testimony, which established that his work stress was a significant factor in his disability, because it was based on Wade's inaccurate perceptions of his work environment. This case thus raises two issues not clearly resolved by Fox: (1) can the "unusual stress in the profession" test be used to evaluate a stress claim once the presumption of com-pensability has been established; and (2) can the board reject expert testimony that a claimant's mental injury is related to job stress if the experts have no independent knowledge of the actual circumstances of the claimant's job? 1. Rejection of the "unusual stress in the profession" test In Delaney v. Alaska Airlines, 693 P.2d at 864, we rejected an airline pilot's claim that job stress aggravated his preexisting physical condition (Crohn's disease) resulting in his disability. One reason we gave for denying the claim was that Delaney "was a 'usual' pilot and not subject to 'unusual' stress not shared by others in his profession." Id. Fox expressly rejected this "greater than all employees must experience" test and other objective threshold requirements for mental injury claims. 718 P.2d at 982. In Fox, we explained that the Delaney decision was based upon the employer's unequivocal expert testimony that job stress was not a factor in producing Delaney's disability. Id. at 983. In this case, the board used the "unusual stress in the profession" test as the sole criterion for its determination that the ASD rebutted Wade's presumption of compensa-bility. Furthermore, it was the most important criterion for the board's decision that Wade had failed to meet his burden of proving compensability. Insofar as the "unusual stress in the profession" test is dispositive of a stress claim, it is a "threshold" requirement and is precluded by Fox. Therefore, we must reverse the board's decision that Wade's mental injury was not substantially related to his job stress. Unusual stress in the profession may be relevant to determining whether a stress disability suffered by an employee was job related. An employee who experienced greater stress on the job than his colleagues, and suffered a stress-related injury, may use evidence of this comparison as part of his proof that the stress was job related. However, the fact that an employ ee did not suffer greater than usual stress on the job is of limited value in determining that the employee's stress was not job related. An employer cannot dismiss one employee's response to job stress because other employees in the field do not become disabled in response to identical stress. The employer must take the employee "as he finds him." Fox, 718 P.2d at 982; S.L.W. v. Alaska Workers' Compensation Board, 490 P.2d 42, 44 (Alaska 1971); Wilson v. Erickson, 477 P.2d 998, 1000 (Alaska 1970). We will not preclude "eggshell" claimants, like Wade, from recovery in workers' compensation solely because they succumb to stressful job conditions to which others in the profession do not succumb. See Fox, 718 P.2d at 982. We would not preclude a worker from recovery in workers' compensation for an injury received in a fall although other more hardy workers would not have suffered from the same fall. To the extent that Delaney suggests otherwise, it is disapproved. We conclude that the board erred in relying on evidence that Wade did not experience unusual stress not experienced by other school security guards. 2. Evaluating expert testimony on the impact of job-related stress In determining that Wade failed to prove that his stress disability was job-related, the board rejected Wade's medical experts' testimony that his job stress was a major factor in Wade's disability. This testimony must be "given less weight," the board held, because it was based on Wade's "faulty perceptions" about his job environment. Although Wade disputed it, the board had substantial evidence from which it could conclude that Wade's illness resulted in his misperceiving the reality of various events at school. The testimony of Wade's own experts confirmed that he was psychotic and delusional. Depositions of his co-workers at Wendler contradicted Wade's allegations of a number of incidents. It is also clear that Wade's psychotherapists did not independently verify Wade's stories about the events he claimed to have experienced at work. The psychotherapists agreed, however, that Wade's mental problem was significantly related to his employment. The ASD did not introduce any contradictory medical testimony, nor did its cross-examination lead Wade's experts to equivocate on this issue. In Fox, we held that a mentally disabled employee's honest perception that her disability resulted from job-related stress was not dispositive on that issue. 718 P.2d at 983. We rejected the holding of Deziel v. Difco Laboratories, Inc., 403 Mich. 1, 268 N.W.2d 1, 12-13 (1978), in which the Michigan court adopted this "honest perception test" because psychoneuroses were by definition subjective injuries existing only in the minds of the victims. Fox did not hold, however, that honest perceptions were entirely immaterial to the issue. We noted that "[a] test that focuses exclusively upon the employee's honest perception ignores the statutory directive [that the injury arise out of employment] because it does not ask whether the mental injury arose from an employment related risk nor does it even look to whether an employee's subjective reaction to work stresses actually contributed to the injury." 718 P.2d at 983 (emphasis added). If the board were to reject expert psychotherapist testimony on the relationship between an employee's mental injury and his job-related stress solely because the psychotherapist based his opinion on this issue in part on the unverified and incorrect statements of the employee, a psychotic individual might never be able to prove that his employment contributed to his psychosis. A psychotic, by definition, misper-ceives objective reality. Wade's psychotherapists did not accept all his assertions about his job as true, but nevertheless attributed a significant amount of his debilitating stress to his job. In McGarrah v. State Accident Insurance Fund, 296 Or. 145, 675 P.2d 159, 170-71 (1983), the Oregon court hypothesized a paranoia case strikingly similar to the instant case: A worker may honestly believe that the employer plans to kill him and as a result of that fear cannot work, but if that belief emanates only from the worker's own paranoia and there was no evidence the employer had any such plan, no stress condition factually existed on the job and the resulting impairment would not be compensable. On the other hand, a worker with a non-disabling paranoid personality may lapse into a totally disabling psychotic paranoia if managers pile too heavy a workload on such a susceptible employe. Honest perception exists in both cases, but workers' compensation would be properly denied in the first case and properly allowed in the second. Admittedly, Wade was an "eggshell" claimant. His paranoid personality disorder was apparently latent in his background prior to his early adulthood. Nevertheless, the experts uniformly agreed that Wade's job stress played a significant role in his disability. As we stated in Delaney, "our task is not to independently reweigh the evidence, but to determine whether there is substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the board's conclusion." 693 P.2d at 863 (footnote omitted). The record as a whole does not support the board's finding that Wade's stress was not job-related. The only direct evidence on this issue was the testimony of Wade's psychotherapists that his job stress did significantly contribute to his illness. The fact that he had other sources of stress does not detract from the assertion that job stress significantly contributed to the illness. In Brown, we stated, "'the question whether the employment did so contribute to the final result is one of fact which is usually determined from medical testimony.' " 444 P.2d at 532 (quoting Thornton v. Alaska Workmen's Compensation Board, 411 P.2d 209, 210 (Alaska 1966)). To refute the presumption of compensability, the ASD could have rebutted this testimony with contradictory medical testimony. It did not do so. Cf Fox, 718 P.2d at 979 (psychologist testified that while claimant thought her job stress caused her mental disability, her real sources of stress were from outside her job). Testimony that the job was inherently stressful and that Wade did not experience "unusual" stress is not legally pertinent to the issue. We conclude that the board erred in finding that Wade's illness was not job-related. Moreover, because Wade is how dead, additional medical testimony will be of limited value. We find, based on the record as a whole, no substantial evidence that the employment did not play an active role in the development of the mental disability. See Fox, 718 P.2d at 984. Therefore, we hold that Wade established his entitlement to worker's compensation. We remand this case to the board for its determination of the appropriate award. B. Back Injury Wade's third amended claim for adjustment added a claim for physical injury described as "neck, shoulder, back and internal injury sustained in breaking up student fight" sustained on October 28, 1981. The board denied this claim because (1) the claim was barred by the two-year limitation for filing of claims imposed by AS 23.30.-105(a) and (2) even if it weren't barred, the employer rebutted the presumption of com-pensability by substantial evidence and Wade then failed to prove his claim. The superior court affirmed, stating "[tjhere was substantial evidence to support the board's finding that the back injury was not a 'compensable injury.' " The superior court does not clarify whether it upheld the board on the timeliness issue. (1) Timeliness AS 23.30.105(a) states: The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature of the employee's disability and its relation to the employment and after disablement. However, the maximum time for filing the claim in any event other than arising out of an occupational disease shall be four years from the date of injury, and the right to compensation for death is barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of the injury or death, a claim may be filed within two years after the date of the last payment. It is additionally provided that, in the case of latent defects pertinent to and causing compensa-ble disability, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding. (Emphasis added.) The board found that this section barred Wade's back injury claim because he received the injury on October 28, 1981 but did not file a workers' compensation claim on it until July 27, 1984, more than two years later. However, the board did not make a finding of fact concerning the date that Wade had "knowledge of the nature of [his] disability." Apparently his back problems became increasingly severe over time. Absent a finding of fact giving a particular date from which Wade knew the nature of the disability, it is impossible to determine whether his claim was filed within two years of that time. We cannot affirm the denial of the back claim on this ground. (2) Rebuttal of Presumption and Burden of Proof The board held that even if the back injury claim were not time-barred, the inju- • ry was not compensable because the ASD rebutted the presumption of compensability and Wade failed to prove by a preponderance of the evidence that the injury was compensable. Our standard of review on this issue is the substantial evidence standard. Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985). The board apparently erred in its statement that "we rely on the employee's weight lifting achievements_" The evidence is fairly clear that Wade's Mr. Alaska award was not specifically for weight lifting. This error is harmless, however. The board had substantial evidence before it that Wade did lift weights following his alleged injury. The board could find that Wade's explanation that he limited his workouts to minimize the back strain was not credible. There was no unequivocal medical evidence that Wade's back problems in 1983 were causally connected to his 1981 injury. Dr. Lathen stated that, "In my guarded medical opinion, that — that injury could be contributed [sic] to it [the 1981 injury]." Dr. Lathen stated that "it's unusual that weight lifting would cause • him to have a painful arc syndrome of the shoulder or a whiplash" but "weight lifting can contribute to back strain." We find that the board had substantial evidence on the record from which it could conclude that Wade failed to prove that his back injury was compensable. We therefore affirm the board's decision denying Wade's, back injury claim. REVERSED and REMANDED in part, AFFIRMED in part. . Wade's wife had been in treatment with him during part of his treatment; she did not waive her patient-physician privilege. See Alaska R.Evid. 504(b). . The board cited Delaney v. Alaska Airlines, 693 P.2d 859, 864 (Alaska 1985) and Fox v. Alascom, 3 AN-83-7091 Civil (Super.Ct. April 26, 1984). Fox was subsequently reversed on appeal, 718 P.2d 977 (Alaska 1986). . Fox was not handed down until after the board's decision in Wade's case had been issued. 718 P.2d at 977. The ASD implicitly concedes that Fox applies to this case. A new rule of law that constitutes a "clear break" from existing law may be applied only prospectively, Commercial Fisheries Entry Comm'n v. Byayuk, 684 P.2d 114,117-18 & n. 10 (Alaska 1984), although generally a new rule of civil law will be applied retroactively. Plumley v. Hale, 594 P.2d 497, 502 (Alaska 1979). In the absence of argument by the parties on this issue, we apply the Fox rule retroactively, in accordance with the general rule. .In worker's compensation cases, compensability is presumed once the worker establishes a "preliminary link" between his employment and his disability. The employer can rebut this presumption by producing substantial evidence that the injury is not compensable. Thereupon, the presumption drops out, and the employee must bear the burden of proof as to each element of the claim. Delaney, 693 P.2d at 862; see AS 23.30.120(1) ("In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter ."). . The "greater than all employees must experience" test compares the stress experienced by a claimant to that experienced by other employees generally. Fox, 718 P.2d at 981-83; see School Dist. No. 1 v. Dep't of Industry, Labor and Human Relations, 62 Wis.2d 370, 215 N.W.2d 373, 377 (1974). Thus, a librarian, whose job is generally low in stress, may find it difficult to establish a stress injury, while a highly stressed executive may have an easier time establishing such an injury. Another test for job related stress may be called the "unusual stress in the profession test." This test compares the stress experienced by the claimant to that experienced by others in the same profession. E.g., Sloss v. Industrial Comm'n, 121 Ariz. 10, 588 P.2d 303, 305 (1978). This test would deny benefits to an "eggshell" claimant in a stressful job, apparently on the theory that he assumed the risk of the stress when he took the job. See Sersland, Mental Disability Caused by Mental Stress: Standard of Proof in Worker's Compensation Cases, 33 Drake L.Rev. 751, 775-79 (1983-84). . See, T. Stedman, Stedman's Medical Dictionary 1166 (Sth ed. 1982) (defining psychosis).- This paradox was implicit in ASD's counsel's question to Dr. Ohlson, "Well, if people are really out to get him then Mr. Wade is quite accurate in his perception, he's not ill." . The board noted that Wade testified he developed back pain due to stress. Such testimony would effectively give rise to a new claim for a mental stimulus causing a physical injury. However, Wade gave no notice of such a claim to the ASD or the board and did not argue it, either before the board or on appeal. We do not address the possibility that Wade somehow made out a claim for a back injury caused by on-the-job stress.

10401610

Victor FISCHER, Petitioner/Cross-Respondent, v. Sandra STOUT, Director of the Alaska Division of Elections, and Stephen A. McAlpine, Lieutenant Governor of Alaska, Respondents, Rick Uehling, Respondent/Cross-Petitioner

Fischer v. Stout

1987-08-07

No. S-1953

217

226

741 P.2d 217

741

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:41:08.803709+00:00

CAP

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

Victor FISCHER, Petitioner/Cross-Respondent, v. Sandra STOUT, Director of the Alaska Division of Elections, and Stephen A. McAlpine, Lieutenant Governor of Alaska, Respondents, Rick Uehling, Respondent/Cross-Petitioner.

Victor FISCHER, Petitioner/Cross-Respondent, v. Sandra STOUT, Director of the Alaska Division of Elections, and Stephen A. McAlpine, Lieutenant Governor of Alaska, Respondents, Rick Uehling, Respondent/Cross-Petitioner. No. S-1953. Supreme Court of Alaska. Aug. 7, 1987. Don Clocksin, Wagstaff, Pope, Rogers & Clocksin, Anchorage, Joseph H. McKinnon, Anchorage, for petitioner/cross-respondent Fischer. Susan D. Cox, Asst. Atty. Gen., Anchorage, Ronald W. Lorensen, Acting Atty. Gen., Juneau, for respondents Stout and McAlpine. James T. Robinson, David A. Devine, Robinson, Devine & Holliday, Anchorage, for respondent/cross-petitioner Uehling.

4850

30361

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. BURKE, Justice. This is an election recount appeal filed pursuant to AS 15.20.510. The principle issue is whether certain votes or classes of votes were properly counted or rejected in the November 1986 election for the state senate in Senate District H. The election results were certified on November 24, 1986. Republican candidate Rick Uehling was declared the winner with 6,730 votes. The incumbent, Victor Fischer, who received 6,715 votes, requested a recount. Following the recount, Uehling was again declared the winner with 6,738.5 votes to Fischer's 6,721.5. Fischer then filed the instant appeal and Uehling cross- appealed on certain issues. On January 16, 1987, we issued an order vacating the certificate of election declaring Uehling the prevailing candidate and remanded the matter to the Director of Elections (Director) for a partial further recount. We indicated at that time that an opinion would follow. I. SCOPE OF REVIEW On December 4, 1986, following Fischer's request for a recount, a meeting was held between the Director, Fischer, and Uehling wherein it was explained to the candidates that they would have until December 6, 1986 to make specific challenges to specific ballots or any challenges would be deemed waived. Both candidates appeared to understand these instructions and neither objected to the deadline. Both candidates did submit written comments and ballot challenges by December 6 but, despite the fact that the deadline had passed, Fischer later challenged at least thirty-six additional ballots. The Director urges us to limit our review in this recount appeal to those individual ballots specifically challenged by December 6, 1986 under the specific error alleged at the time of the challenge. In effect, the Director argues that our review authority under AS 15.20.510 is limited to a review of those ballots upon which the Director has actually made a specific determination. Alternatively, she asserts that Fischer has either waived any challenges not raised by December 6 or that lack of notice should prevent Fischer from asserting new challenges not listed in his original complaint. While he neither admits nor denies that he has raised new challenges, Fischer argues that candidates are entitled to submit materials for consideration up until final certification of the recount. Any establishment of a deadline, Fischer asserts, is arbitrary and unsupported by statute or regulation. Fischer's argument is persuasive. We are unaware of any specific legislative or-administrative pronouncement providing the Director authority to set deadlines for submission of specific ballot challenges. Consequently, the December 6 deadline will not be given effect. While imposition of the Director's deadline may well have been wise and expeditious, streamlining the recount and providing faster certification, we will not imply from the legislative and administrative silence an intent to provide the Director with the authority to arbitrarily limit the scope of a recount. Our obligation under AS 15.20.510 is to determine whether a "vote was cast in compliance with the requirements of Alaska's election law." Willis v. Thomas, 600 P.2d 1079, 1082 (Alaska 1979). That obligation may not be discharged by a limited review of the Director's specific determinations, but must extend to a review of all ballots questioned on any basis. Accordingly, we hold that our obligation under AS 15.20.510 is to review any and all questioned ballots cast in the election at issue, regardless of whether they were or were not specifically challenged below. II. BALLOT CHALLENGES: FISCHER a. Punch-Card, Ballots Fischer complains of the Director's decision to count or reject certain punch-card ballots based upon the methods used to mark those ballots. There are eight such ballots, five called for Uehling and three called as blank. In each of these challenges we must examine the ballot to determine whether the voter's intent can be adequately identified. Willis, 600 P.2d at 1084-85; Hammond v. Hickel, 588 P.2d 256, 274 (Alaska 1978). We conclude that the Director's call in each case was correct. Fischer also challenges one ballot, called for Uehling, upon which the voter signed his or her name. Fischer argues that this ballot should have been declared a "spoiled ballot" and destroyed pursuant to AS 15.15.280 — .300 (declaring "spoiled" ballots which have been "exhibited"). We are unable to agree that this ballot was "exhibited" within the meaning of AS 15.15.280 —.300. Accordingly, we affirm the Director's determination. Finally, Fischer challenges two ballots, called for Uehling, which were marked entirely with a pen rather than punched. Fischer claims these votes should not have been counted because there was a punch-card machine available. Neither AS 15.15.-360 (rules for counting hand-marked ballots) nor AS 15.20.730 (rules for counting punch-card ballots) require voters to use a punch-card machine if one is available, but only specify the manner of counting properly punched and hand-marked ballots. Moreover, in Hammond, we held that punch-card ballots marked entirely by pen or pencil instead of punched were valid because they provided clear evidence of the voters' intent. 588 P.2d at 274. Accord, Willis, 600 P.2d at 1084. The voters' intent on these challenged ballots is clear. Accordingly, we affirm the Director's decision. b. Absentee Ballots: Voter Residence in Question Voters in state and local elections must be residents of the election district in which they vote. Alaska Const, art. V, § 1; AS 15.05.010(4). A person's residence is that fixed place of habitation to which the individual intends to return if absent. AS 15.05.020(2). It need not be a house or apartment. It need not have mail service. A residence need only be some specific locale within the district at which habitation can be specifically fixed. Thus, a hotel, shelter for the homeless, or even a park bench will be sufficient. See Pitts v. Black, 608 F.Supp. 696 (S.D.N.Y.1984); Collier v. Menzel, 176 Cal.App.3d 24, 221 Cal.Rptr. 110 (1985). Fischer contests the ballots of five voters who listed as their residence address only "Elmendorf Air Force Base." Elmen-dorf Air Force Base is a bounded area wholly within Senate District H. Thus, merely listing "Elmendorf Air Force Base" is sufficient to fix a voter's residence to a specific locale within District H. These votes were properly counted. Fischer also challenges those absentee voters who registered to vote using a post office box or private mail service as the voter's residence. A post office box or private mail service address is clearly not a voter's fixed place of habitation and is therefore insufficient to fix a voter's residence within a voting district. Thus, any voter providing such an address as his or her residence would be ineligible to vote unless he or she provided additional information regarding that voter's residence. Both Cyrette Sanford and Lash G. Sanford registered with a post office box address. However, both also requested, on their absentee ballot application, that their registration be updated to reflect a new residence address: Elmendorf Air Force Base. This address update provided sufficient information to ascertain their residence within District H. These votes were properly counted. Seven voters registered using the address of a private mail service without providing any additional information as to their residence. Thus, those voters provided insufficient information to ascertain their residence within District H and should not have had their ballots counted. The ballots of the following voters were improperly counted: Andrea S. Ellis, Robert L. Jones; Treva E. Jones; John D. McCan-nell; Phyllis E. Neher and Thomas S. Stein. Finally, Fischer contests the ballot of a single voter, Jennifer Gomilar, who is alleged to have registered using a non-exis tent address. One may not, of course, reside in a nonexistent locale. In this instance, however, no evidence was produced indicating that Jennifer Gomilar did not reside at her listed address at the time of registering, nor did Ms. Gomilar provide the affidavit required to rebut the presumption of residency provided by AS 15.-05.020(10). This ballot was properly counted. c. Overseas Voters The Director counted some fourteen absentee ballots from voters living outside the United States. Persons residing outside the United States may register to vote in Alaska pursuant to AS 15.05.011 if they were domiciled in Alaska before leaving the United States and meet various other requirements as specified. Fischer asserts that a voter registered pursuant to AS 15.05.011 may vote only in federal, not state, elections and thus these ballots should not have been counted. Fischer is quite correct in asserting that a voter who actually registered pursuant to AS 15.05.011 may not vote in a state race.. See AS 15.05.011(d). However, a person living outside the United States is not required to register pursuant to AS 15.05.-011, but may vote by absentee ballot in Alaska if that person is otherwise qualified pursuant to AS 15.05.010. Here, every questioned voter listed a presumptively valid Alaska residence within District H and was otherwise qualified. Because no evidence was produced rebutting the presumption of residence, these ballots were properly counted. d. Persons Allegedly Residing Outside District H Fischer also challenges thirteen ballots on the ground that each voter had executed an affidavit setting out a new voting residence outside District H and therefore the presumption of AS 15.05.-020(10) had been rebutted. The affidavits to which Fischer refers are declarations that appeared on the envelope in which each of these voters returned his or her absentee ballot. Absentee ballots must be returned in a special envelope which contains an oath that the voter is a qualified voter in all respects. AS 15.20.030. The voter oath includes a space for the absentee voter to fill in his or her "permanent Alaskan residence." Fischer claims that since the absentee voter oath was a "form prepared by the director" and since the challenged voters each indicated under oath a residence outside District H, these ballots should not have been counted. Fischer's argument has merit. Because these affidavits come within the literal definition of the statute by which the presumption of voter residence may be rebutted, they cannot be disregarded as were the forms prepared by the federal government at issue in Willis. 600 P.2d at 1085. Thus, the following ballots should not have been counted because the voters reside outside District H: Anita Gilmore; Carol S. Kirkland; Walter C. Kirkland; Elizabeth B. Larsen; M. Inez Lee; Lucia S. Mandapat; Leonard D. Neber; LaMar Noth; Robert Six; Vicki L. Six; and Betty Sue Williams. The ballots of Laura J. Sims, Neal C. Sims and Susan Schreib, though challenged on identical grounds, were properly counted. As to these ballots there was insufficient evidence on the ballot or ballot envelope to indicate that the voters intended to register a new permanent Alaska residence. e. Absentee Ballot Attestation Defects Fischer contends that thirty absentee ballots were improperly counted on the ground that the attesting officer failed to adequately indicate the source of that officer's attestation authority. Alternatively, he asserts that if these thirty ballots were properly counted, the Director's disqualification of another ballot on the identical ground was improper. Absentee ballot voting by mail is governed by AS 15.20.081. AS 15.20.081(d) provides that an absentee ballot will be valid only if the ballot envelope is signed by the voter in the presence of an attesting officer. The officer must in turn sign and date the attestation section of the envelope immediately thereafter. AS 15.20.081(d) and 6 AAC 25.110(a) specify the classes of persons authorized to serve as an attesting officer. If no appropriate officer is available, the voter may sign the voter's certificate in the presence of two persons over the age of eighteen years and have those two witnesses sign the attestation form. AS 15.20.081(d); 6 AAC 25.110(b). Fischer maintains that a ballot must be found void and thus uncountable unless the authority of the attesting officer is clear from the face of the ballot envelope and because the Director has provided space in the attestation section wherein this information may be provided. We disagree. Fischer indicates no authority, and we are aware of none, which requires the production of such information. Therefore, the officer's failure to provide the source of that officer's authority will not of itself invalidate the ballot. It must be presumed that persons who attest an absentee ballot as an authorized official do so in full cognizance of the text and oath on the absentee ballot form. This presumption may be rebutted by an affirmative showing that the attesting officer lacks appropriate authority. Because Fischer has produced no evidence rebutting the presumption of authorization, all ballots challenged on this basis were properly counted. Conversely, it naturally follows that the Director's disqualification of Vincent McClelland's ballot for the failure of the attesting officer to adequately identify the source of the officer's authority was improper. Mr. McClelland's ballot should have been counted. f. Individual Ballot Challenges 1. Maritza M. Munoz. Ms. Munoz asserts that she was properly registered in August 1986 at the Cowper for Governor Campaign Headquarters. Her statements are corroborated by Cathy Allen, a certified voter registrar, who assisted Ms. Munoz in completing the voter application. Apparently Ms. Munoz's forms were lost somewhere along the line and Ms. Munoz was forced to vote a questioned ballot. The election officials found this evidence insufficient to establish that Ms. Munoz was a qualified elector and refused to count her ballot. In Willis we upheld the decision of a master to count the votes of two voters whose names did not appear on the voters list because the registrars failed to send their registration applications to the Division of Elections. 600 P.2d at 1087. As in Willis, the error with regard to Ms. Munoz's application was "solely on the part of the election officials." Id. Her vote should have been counted. 2. Daryl Wallace. When attempting to correct an error in the address given on his voter registration card, Mr. Wallace checked the box cancelling his registration. Fischer argues that the voter registration card is confusing and that Mr. Wallace's ballot should have been counted. We agree. A voter's franchise will not be withdrawn unless the voter's intent to have it withdrawn is clearly and unambiguously expressed. In this case we can not say that Mr. Wallace's intent was unambiguous. His vote should have been counted. 3. Howard Baker. The Director refused to count the ballot of Mr. Baker on the ground that the attesting officer had initialed the attestation section rather than signed. It is black letter law that any mark intended as a signature will function as such. Moreover, we are unaware of any legislative or administrative pronouncement specifying the form that the attesting officer's signature must take. Mr. Baker's ballot should have been counted. 4. Glen Greeley. The voter registration records indicate that Mr. Greeley has never been registered in District H. Though there is some evidence indicating that Mr. Greeley had changed his residence to District H, the evidence is inconclusive and unconvincing. Additionally, the evidence is not the sort required by AS 15.05.-020(10) to rebut the presumption of residence. His vote should not have been counted. 5. Christian F. Kreps. Ms. Kreps filed appropriate papers on October 15,1985 to have her official voter residence changed to a residence outside District H but this change was not processed. Regardless, the records conclusively show that Ms. Kreps is not a resident of District H. Her ballot should not have been counted. 6. Michael E. Banasik. Mr. Ba-nasik changed his address to a residence outside the district in 1982. He has not changed it since. Mr. Banasik's ballot should not have been counted. AS 15.05.-020(10). 7. Gary W. King. Captain King "witnessed" his own absentee ballot. Such a "witnessing" contravenes AS 15.20.-081(d). His ballot should not have been counted. 8. Margie D. Wagner-Jogerst. Fischer asserts that Ms. Wagner-Jogerst originally registered by absentee ballot application without proper witnessing contrary to AS 15.07.070(b). Contrary to Fischer's assertion, however, Ms. Wagner-Jogerst clearly stated on the absentee ballot application that she wished merely to update her current registration and thus no witnessing was required. Fischer has offered no proof that Ms. Wagner-Jogerst was not officially registered at the time she filed her absentee ballot application. Her vote was correctly counted. 9. Wilford A. Day. Mr. Day "witnessed" his own ballot. His vote was improperly counted (see #7 above). 10. Mason McLean. Mr. McLean was originally registered outside District H. Though he later moved to a locale within District H, he has never updated his official voter residence address and so may not vote within the district. AS 15.05.-020(10). His vote was improperly counted. 11. Ira E. Hill. Mr. Hill originally registered by submitting an absentee ballot application. Because his application was not witnessed or attested, the registration contravened AS 15.07.070(b) and was therefore invalid. Mr. Hill's vote should not have been counted. III. JOINT CHALLENGES A. Name Changes Six women attempted to vote by signing a name different from that under which they were registered. Though it is not contested that each woman was properly identified as a person registered to vote, each was told that she must vote a ques tioned ballot. Five of these women listed on their submitted ballots their current names, the names under which they were previously registered and none were told that signing a ballot with a name different from that under which they were registered would invalidate their ballots. Nevertheless, all six ballots were rejected pursuant to unpublished policy. Both Fischer and Uehling contest the treatment of these ballots as contrary to law. AS 15.07.090(a) provides that: A voter whose name is changed by marriage or court order may vote under the previous name, but if the voter desires to use the new name, he or she shall notify the director not later than 30 days preceding an election so that the registration may be amended to reflect the change. Though we have discussed the requirements of AS 15.07.090(a) in other contexts, see Willis, 600 P.2d at 1086; Hammond, 588 P.2d at 271, we have not before had occasion to consider the specific question here raised: whether a voter who has changed his or her name since originally registering and who signs a ballot with a name different from his or her registered name has voted under his or her previous name pursuant to AS 15.07.090(a). Legislative history provides little guidance in interpreting the facially ambiguous phrase, "may vote under the previous name." Accordingly, we will seek a construction of the phrase which avoids the wholesale disfranchisement of qualified electors. See Carr v. Thomas, 586 P.2d 622, 626 (Alaska 1978). The Director argues that to vote "under the previous name," a voter must sign his or her registered name on the ballot and that signing with any other name or mark will invalidate that ballot. We cannot agree. As a broad proposition, requiring a signature is nothing more than a means of affirming the identity of the signator and of authenticating the document on which the signature is affixed. The signature may be affixed in any manner and may consist of any character, symbol, figure, or name so long as such mark is intended by the signator as a substitute for the individual's given name. See generally 80 C.J.S. Signatures § 1(c), 2(a) (1953) and cases cited therein. AS 15.07.090(a) does not refer to signatures at all, let alone specify a particular form of signature. We thus see no justification for inferring a legislative intent to require the voter to sign using only his or her previous name. Rather, we think it evident that a voter votes "under the previous name" whenever the voter is positively identified as the registered individual and lists on the ballot his or her previous name. Analogy is useful here. There is no question that a voter registered under the name of Jane Doe would be allowed to vote by signing the ballot with an "X" so long as the voter was positively identified as Jane Doe, listed the name "Jane Doe" on the ballot, and intended the "X" as a substitute for her signature. We see no reason for invalidating the ballot because Jane Doe choose to sign "Jane Smith" instead. Thus, because five of these women here were properly identified as registered voters in District H and listed their previous name on their ballots, the following ballots should have been counted: Debra M. Sherwood (Rudloff); Alice Rodes (Bullington); Carrie Kee (Showers); Felicia Z. Gatewood (Williams); and Fannie J. Martin (Crowe). b. Pro Rata Vote Reduction After determining that seventeen ballots had been erroneously counted, the Director applied the "Hammond formula" to proportionately reduce each candidate's actual vote total. Six votes were deducted from the District 12 absentee ballot count and eleven from District 13. The result was a pro-rata deduction of 6.5 votes from Fischer's total and 10.5 votes from Uehling's total. Uehling argues that the Director exceeded her authority by using a proportionate reduction formula to actually change the official vote totals of each candidate. He contends that the Director's analysis should have ended when she correctly determined that the errors in the vote count were not sufficient to change the results of the election. We agree. In Hammond, we discussed the proportionate reduction rule as the only method to properly determine the effect of any bias that affected individual votes in a random fashion. 588 P.2d at 260. We did not intend, however, that the technique was to be used to actually reduce the candidate's official total. As Uehling correctly points out, the technique was to be used only as an analytical tool to aid in the determination of whether the contaminated ballot actually would effect the result of the election. Accordingly, in the recount proceeding which was conducted, each candidate's final vote total was reduced on a pro-rata basis for the limited purpose of determining whether the count errors noted above were errors of sufficient magnitude to change the result of the election in Senate District H. If the result was not changed, the Director was authorized to certify candidate Uehling as the prevailing candidate. If the result would have been changed, the Director was to report that fact to the court. We reject Fischer's assertion that the Director used the wrong "unit" on which to base her analysis. Fischer argues that the smaller the unit to which the votes can be traced, the more accurate the reduction will be. Here, Fischer contends, the votes can be traced to six smaller, and thus more accurate, units and he urges us to adopt his method and apply it to any and all votes we now declare invalid. Whatever the theoretical merits of Fischer's argument, the record does not support a tracing to Fischer's "smaller units." In addition, established precinct or district levels are reasonably accurate, easy, and readily available units on which to base such determinations. Reference to those units will avoid considerable administrative difficulty, speed the recount and certification process, and will thus better serve the public interest. IV. CONCLUSION Because of the disposition above, we need not consider Uehling's other assignments of error. For the reasons stated, pursuant to our authority under AS 15.20.-510, we entered the order of January 16, 1987. .AS 15.20.510 provides: A candidate or any person who requested a recount who has reason to believe an error has been made in the recount (1) involving any question or proposition or the validity of any ballot may appeal to the superior court in accordance with applicable court rules governing appeals in civil matters, and (2) involving candidates for the legislature or Congress or the office of governor and lieutenant governor may appeal to the supreme court in accordance with rules as may be promulgated by the court. Appeal shall be filed within five days of the completion of the recount. Upon order of the court, the director shall furnish the record of the recount taken including all ballots, registers, and other election material and papers pertaining to the election contest. The appeal shall be heard by the court sitting without a jury. The inquiry in the appeal shall extend to the questions whether or not the director has properly determined what ballots, parts of ballots, or marks for candidates on ballots are valid, and to which candidate or division on the question or proposition the vote should be attributed. The court shall enter judgment either setting aside, modifying, or affirming the action of the director on recount. . The fractional vote given to each candidate is the result of a proportionate reduction in their vote totals. This adjustment was apparently made to compensate for a counting error. The adjustment is discussed in Part 111(b), infra. See also, note 14 infra. . Fischer also challenged the election in an action filed in superior court pursuant to AS 15.-20.540. That action was ordered stayed pending our resolution of this appeal. . We take judicial notice that after the order issued, partial recount was conducted and Uehl-ing again certified as the prevailing candidate. . We express no opinion as to the Director's authority to establish recount guidelines through the normal process for promulgating administrative regulations. . Although Willis was decided under a different version of AS 15.20.510, the only difference between the statute then and now is that the "director" has been substituted for the "lieutenant governor" as the person whose decision is reviewed. . We take judicial notice that human beings are of insufficiently diminutive stature to dwell comfortably within such a space. . AS 15.05.011 provides: Qualifications of overseas voters, (a) A person residing outside the United States may register and vote absentee by qualifying under this section. (b)Before registering a person under this section, the director shall determine that the person (1) was domiciled in the state immediately before leaving the United States; (2) meets the qualifications established in AS 15.05.010(1) and (2); (3) has not established a domicile in another state, territory, or possession of the United States since leaving this state; (4) is not registered to vote and has not voted in another state, territory, or possession of the United States since leaving this state; (5) has a valid passport, card of identity and registration, or other identification issued under the authority of the United States Secretary of State, and identification complying with the requirements of this title. (c) Lack of a place of abode in the state or lack of intent to return to this state does not disqualify a person who qualifies under (b) of this section. (d) A person registered under this section may vote in a federal election in this state. . AS 15.05.020(10) provides: The address of a voter as it appears on his official voter registration card is presumptive evidence of the person's voting residence. If the person has changed his voting residence, this presumption is negated only by the voter executing an affidavit on a form prepared by the director setting out his new voting residence. . These persons are: (1) justice; (2) judge; (3) magistrate; (4) clerk of court; (5) notary public; (6) United States Postmaster or authorized postal clerk; (7) any commissioned officer of the armed services, including the National Guard and United States Coast Guard; (8) election judge on election day; (9) absentee voting official; (10) division of election employee; (11) any other person qualified to administer oaths. . See Section 111(a) infra. . In Carr we observed: Courts are reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own, and "[where] any reasonable construction of the statute can be found which will avoid such a result, the courts should and will favor it." 586 P.2d at 626 (quoting Reese v. Dempsey, 48 N.M. 485, 153 P.2d 127, 132 (1944) (footnote omitted)). . In our January 16, 1987 order we erroneously indicated that Penny A. Wild's ballot should have been counted. Penny A. Wild did not list her previous name, leaving blank the space following the line calling for a listing of a previous name. Thus, under our construction of AS 15.-07.090(a), her ballot should not have been counted and the director's decision is upheld. . See Hammond, 588 P.2d at 260 ,& n. 6 ("contaminated votes must be deducted from the vote totals of each candidate in proportion to the votes received by each candidate in the precinct or district where the contaminated votes were cast"). . Because the errors set forth herein did not effect the result of the election, we need not, at this time, determine the procedure to be employed if the election result is put in doubt by application of the proportionate reduction rule.

10435346

KACHEMAK SEAFOODS, INC., Appellant, v. CENTURY AIRLINES, INC., Appellee

Kachemak Seafoods, Inc. v. Century Airlines, Inc.

1982-03-05

No. 5768

213

218

641 P.2d 213

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

KACHEMAK SEAFOODS, INC., Appellant, v. CENTURY AIRLINES, INC., Appellee.

KACHEMAK SEAFOODS, INC., Appellant, v. CENTURY AIRLINES, INC., Appellee. No. 5768. Supreme Court of Alaska. March 5, 1982. Michael W. Sharon, Hartig, Rhodes, Norman & Mahoney, Anchorage, for appellant. Clark Reed Nichols, Perkins, Coie, Stone, Olsen & Williams, Anchorage, for appellee. Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

2548

15850

OPINION MATTHEWS, Justice. This appeal involves the construction and application of AS 10.05.690. That statute denies an unregistered foreign corporation "transacting business" in the state the right to maintain suit in an Alaska court. In the proceedings below, appellant moved for summary judgment, arguing that appellee's suit against it was barred under AS 10.05.-690. The trial court denied that motion and, after trial and a judgment in appellee's favor, this appeal was taken. We affirm. Century Airlines, Inc. is a Michigan corporation owned by Clark Cryderman and his wife. Its sole office is located in Pontiac, Michigan and, with one exception, Century has never stationed employees or representatives outside of that state. Prior to 1975, Century's business consisted of chartering airplanes, selling aviation fuel and occasionally selling airplanes. Century had never had any contact with Alaska or Alaskan businesses before the events which have led to this appeal occurred. A foreign corporation transacting business in the state without a certificate of authority may not maintain an action, suit or proceeding in a court of the state until it obtains a certificate of authority. A successor or assignee of a foreign corporation transacting business without a certificate of authority may not maintain an action, suit or proceeding in a court of the state on a right, claim or demand arising out of the transaction of business by the corporation in the state until a certificate of authority is obtained by the corporation or by a corporation which has acquired all or substantially all of its assets. Sometime in 1975, an officer of Kodiak Western Airlines, Inc., an Alaska corporation, called Cryderman to inquire about leasing a DC3 airplane from Century for the summer. Century had never before leased aircraft, but as a result of this conversation Century agreed to lease Kodiak a DC3. Kodiak prepared and signed the lease in Alaska and then mailed it to Michigan, where Cryderman signed it on Century's behalf. Under the lease, Century was to supply all parts that might be needed for repairs, and to perform engine overhauls or replacements. Kodiak was otherwise responsible for maintaining and servicing the leased aircraft. Prior to the airplane's delivery, Kodiak agreed to sublease it to Kachemak Sea-foods, Inc. Kachemak is an Alaska corporation headquartered in Togiak, Alaska, and owned by Robert Needham and his wife. Kachemak processes and markets salmon, using aircraft from June to mid-September to fly salmon into Anchorage which are then flown to Seattle for marketing. The leased DC3 was flown from Michigan to Togiak by a Kachemak pilot. Cryder-man went along on this flight to view Kachemak's operations and to see the state. He remained in Alaska for about a week and while in Togiak spoke with Needham. During that conversation, Needham brought up the possibility of Century leasing aircraft directly to Kachemak in future years, but Cryderman stated that he "wasn't interested in circumnavigating [Kodiak] to go direct." At the end of the 1975 lease period as the plane began its ferry flight back to Michigan, it developed engine problems in Dill-ingham, Alaska. Cryderman talked to both the Kachemak pilot and a Kodiak mechanic and learned that the engine had seized. He had a spare engine and a Century mechanic flown to Dillingham who, with the assistance of Kodiak's mechanics, changed the engine. A dispute later arose between Century and Kodiak regarding responsibility for the labor cost of installing the engine and the cost of ferrying the plane back to Michigan. Century had borne these costs and felt that it was entitled to reimbursement by Kodiak. Although Century did not pursue the matter at that time, Century decided not to lease to Kodiak again. In the fall of 1975, Needham wrote to Cryderman expressing his interest in leasing directly from Century. Cryderman did not respond and sometime in 1976 Needham again wrote Cryderman. This time Cryder-man answered, stating that Century would not enter into any further leasing arrangements until it had been paid for the previous year, referring to the amount assertedly still owed Century by Kodiak. Needham replied that Kachemak would take care of that debt if that was what it would take to get Century to lease aircraft to Kachemak. This resulted in the June 11, 1976 lease agreement, which was prepared and signed by Kachemak in Alaska and signed by Century in Michigan. The 1976 lease covered two DC3 aircraft. The lease was for a minimum of two months but could be renewed semimonthly at Kachemak's option. Kachemak was to pay the cost of ferrying the planes to Alaska and returning them to Michigan. Kachemak was also to procure liability insurance and to reimburse Century for the cost of hull insurance on the aircraft for the lease period. The lease obligated Kache-mak to provide the flight crews and the fuel and lubricants for operating the leased planes, and to perform all maintenance and repairs other than the major overhaul or replacement of engines and airframes. Unlike its 1975 lease with Kodiak, Century was not responsible for supplying parts for ordinary wear and tear. In late August of 1976, Cryderman traveled to Alaska to try to collect the money Kodiak allegedly still owed Century and to negotiate the sale of one of its leased aircraft to Kachemak. Upon arriving, Cryder-man learned that one of the DC3s had developed engine troubles, apparently due to a damaged cylinder, so he flew to Togiak where the plane was grounded. After he arrived, Kachemak mechanics changed the cylinder and started the engine, but then shut it off as the engine was not running smoothly. At this point, according to Cryderman, Kachemak's mechanics concluded that the engine had failed, and Needham told Cry-derman that Century was responsible for fixing the engine and for returning the plane to Michigan. Needham, on the other hand, stated that it was Cryderman that concluded the engine had failed and that "Cryderman took effective control of the aircraft." Cryderman had an engine and a Century mechanic flown to Alaska where, with the aid of several local mechanics, the replacement engine was installed, and the plane was then flown back to Michigan. While still in Alaska, Cryderman continued negotiating with Needham the sale of the other leased aircraft. They agreed that Century would sell the plane to Kachemak, subject to Kachemak's approval after inspecting the plane and its maintenance history. The sale, however, was never consummated. According to Cryderman, Kachemak failed to tender the full purchase price in time, so he had the plane flown back to Michigan. Needham stated that there was no definite date by which the purchase price had to be tendered and that Century removed the plane before Kache-mak had a reasonable opportunity to inspect it. In August of 1977, Century filed a complaint in superior court alleging that Kache-mak had breached the 1976 lease. Kache-mak denied all liability and filed a counterclaim alleging that Century had breached the sales agreement. In July of 1980, Kachemak moved for summary judgment on the ground that Century's suit was barred by AS 10.05.690. This motion was denied and the case was then tried before the lower court sitting without a jury. The court found that Kachemak owed Century $13,294.00 on the lease agreement and entered judgment for that amount plus interest, costs and attorney's fees, offset by $7,000.00 in damages for Century's breach of the sales agreement. In its Statement of Points on Appeal, Kachemak asserts: The trial court erred when it failed to find that Plaintiff was required to register in the state of Alaska, and that the same is a condition to bringing suit in this state. We now proceed to address that contention. Under the Alaska Business Corporation Act, "[n]o foreign corporation may transact business in the state until it has procured a certificate of authority from the commissioner." AS 10.05.597. Among the sanctions imposed upon a foreign corporation that fails to comply with this mandate is that found in AS 10.05.690. A foreign corporation transacting business in the state without a certificate of authority may not maintain an action, suit or proceeding in a court of the state until it obtains a certificate of authority. . Thus, to have prevailed on its motion below, Kachemak had to show that Century was "transacting business" in this state as that term is used in AS 10.05.690. See, e.g., Wallace v. Lincoln Leasing Corp., 547 S.W.2d 56, 57 (Tex.Civ.App.1977); Filmak-ers Releasing Organization v. Realart Pictures, Inc., 374 S.W.2d 535, 539 (Mo.App.1964). Phrases such as "transacting business" and "doing business" most frequently appear in three distinct statutory contexts: (1) jurisdictional statutes; (2) taxation statutes; and (3) foreign corporation qualification statutes. The meaning of these terms varies with the context in which they are used. It is generally agreed, however, that subjecting a foreign corporation to a state's qualification statutes requires more activity within a state than for service or taxation. See, e.g., Cement Asbestos Products Co. v. Hartford Accident & Indemnity Co., 592 F.2d 1144, 1147 (10th Cir. 1979) (construing Colorado law); Rochester Capital Leasing Corp. v. Sprague, 13 Ariz.App. 77, 474 P.2d 201, 203 (1970); R. Leflar, American Conflicts Law 517-18 (3d ed. 1977). See also 36 Am.Jur.2d Foreign Corporations § 324 at 319 (1968). Indeed, this court has twice recognized that a foreign corporation could be "transacting business" of such a nature that it would not be required to obtain a certificate of authority yet still be subject to service of process under AS 10.05.642, the key phrase of which is "transact business." Stephenson v. Duriron Co., 401 P.2d 423, 424 (Alaska), cert. denied, 382 U.S. 956, 86 S.Ct. 431, 15 L.Ed.2d 360 (1965); Northern Supply, Inc. v. Curtiss-Wright Corp., 397 P.2d 1013, 1016 (Alaska 1965). While the corporation act does not define the term, it expressly excludes certain conduct from the definition of "transacting business." AS 10.05.600 lists ten types of activities which, whether conducted alone or together, will not call into play Alaska's foreign corporation regulations. Of particular importance to the disposition of this appeal is subsection (9), which exempts "transacting business in interstate commerce . " The enactment of this exemption was a recognition of the limits upon state power imposed by the commerce clause of the United States Constitution and was meant to be coextensive with those limits. Compare Diversacon Industries, Inc. v. National Bank of Commerce, 629 F.2d 1030, 1034 (5th Cir. 1980) (applying Mississippi law). We therefore look to decisions under the commerce clause to determine both the scope of this exemption and whether Century's intrastate activities are included within it. The most recent United States Supreme Court decision in point is Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974). In that case the Court held that Mississippi could not constitutionally bar the suit of an unregistered foreign corporation that entered into contracts, arranged through an independent broker, with local farmers to purchase cotton which was temporarily stored in local warehouses for sorting and classification before shipment to other states. In reaching its decision, the court distinguished between instances in which a foreign corporation "localizes" its business in a state and those where it "enters the State 'to contribute to or to conclude a unitary interstate transaction.' " Id. at 32-33, 95 S.Ct. at 266-267, 42 L.Ed.2d at 205, quoting Union Brokerage Co. v. Jensen, 322 U.S. 202, 211, 64 S.Ct. 967, 973, 88 L.Ed. 1227, 1233 (1944). The Court noted that localization had not occurred since, among other reasons, the corporation had no office in Mississippi, and had no employees soliciting business or otherwise operating there on a regular basis. Allenberg, 419 U.S. at 33, 95 S.Ct. at 267,42 L.Ed.2d at 206. When the element of localization is present, a state may constitutionally require that a foreign corporation qualify in the state as a condition to bringing suit there. This was the case in Eli Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961), where the corporation maintained a staffed office and regularly employed eighteen salaried "de-tailmen" in New Jersey in order to promote the intrastate sale of its products by wholesalers to retailers and end users. Applying these authorities to the facts presented by this appeal, we hold that Century was not "transacting business" in Alaska within the meaning of AS 10.05.690. Century's only activities in this state were: (1) the presence of its president for a brief period in 1975 to view the operations in which its leased aircraft would be used; (2) the presence of one of its mechanics in 1975, who was sent to Alaska to change an engine so that its DC3 could continue its ferry flight back to Michigan at the end of the lease period; (3) the brief presence of its president in 1976, who came to the state to attempt to collect money allegedly still owed Century under its 1975 lease, and to negotiate the sale of an airplane to Kache-mak, and (4) the presence of one of its mechanics in 1976, who was sent to Alaska to change an engine so that Century's plane could be flown back to Michigan when a dispute arose under the 1976 lease. This is not a case such as Eli Lilly where the foreign corporation engaged in intrastate activities separate and distinct from its interstate business. Rather, with the exception of the negotiations relating to the proposed sale, Century's intrastate activities were incidental to its interstate leasing of aircraft. As such, they were instances in which Century entered Alaska "to contribute to or to conclude" interstate commerce, Allenberg, 419 U.S. at 32-33, 95 S.Ct. at 266-267, 42 L.Ed.2d at 205, and were therefore exempt from regulation under AS 10.-05.600(9). Nor does the occurrence of intrastate sales negotiations over an aircraft located in Alaska lead to the conclusion that Century "localized" its business in the state. The subject matter of these negotiations was an aircraft owned by a Michigan corporation. The presence of the plane in Alaska pursuant to an interstate leasing transaction does not alter the essential interstate character of the contemplated sale. See Vulcan Steam Shovel Co. v. Flanders, 205 F. 102 (E.D.Mich.1913); see also Harcrow v. W. T. Rawleigh Co., 145 S.W.2d 925, 926 (Tex.Civ.App.1940); American Soda Fountain Co. v. Hairston, 69 S.W.2d 546, 552 (Tex.Civ.App.1934). Because Century's activities in this state fall within the exemption found in AS 10.- 05.600(9), it was not required to obtain a certificate of authority. Accordingly, the trial court did not err by denying Kache-mak's summary judgment motion, as AS 10.05.690 did not apply. The judgment is AFFIRMED. . AS 10.05.690 provides: . The lease agreement, however, is silent as regards Kachemak's purported agreement to satisfy Kodiak's debt to Century. . From time to time during the lease Century did supply Kachemak with parts in order for Kachemak to service the leased aircraft. . AS 10.05.600(8) specifically exempts such activity as a basis for requiring qualification. See Weaver v. O'Meara Motor Co., 452 P.2d 87, 89 (Alaska 1969).

10435446

Larry FRANCIS, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Francis v. Municipality of Anchorage

1982-03-04

No. 5659

226

228

641 P.2d 226

641

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:23:47.189441+00:00

CAP

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

Larry FRANCIS, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Larry FRANCIS, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 5659. Court of Appeals of Alaska. March 4, 1982. Daniel Westerburg, Birch, Horton, Bitt-ner, Monroe, Pestinger & Anderson, Anchorage, for appellant. Elaine Vondrasek, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1405

8684

OPINION PER CURIAM. On July 28, 1979, Larry Francis was the driver of a motor vehicle that was involved in an accident in the Municipality of Anchorage. Francis was fourteen years of age at the time. In September 1979, he was notified by the Department of Motor Vehicles that his driving privileges would be suspended for three years beginning October 21, 1979, because of his failure to furnish proof of financial responsibility as required under Title 28, chapter 20. On July 12,1980, Francis, then 15, drove again within the municipality and was stopped by a policeman, who issued a complaint charging him with driving without a license, in violation of AMC 9.12.010(A). On July 17, the Municipal Prosecutor's office filed an information replacing the complaint and charged Francis with driving while his license was suspended, in violation of AMC 9.12.010(B). However, Francis never had an Alaska driver's license. Francis filed a motion to dismiss the information on the ground that on the undisputed facts the municipality would not be able to prove he violated the ordinance as alleged. The district court denied the motion. Francis entered a plea of no contest, reserving the right to appeal the denial of his motion. The single issue presented for our review is whether or not a fifteen year old who never had a driver's license may be convicted of operating a vehicle while his license was suspended, in violation of AMC 9.12.-010(B). Francis was charged and convicted under the second clause of AMC 9.12.010(B): No person may violate a condition or privilege of such license [i.e., a license to operate a motor vehicle], nor may any person drive a vehicle while such license is suspended, revoked, refused or can-celled. . In AMC 9.04.250(B) the municipality has defined "license to operate a motor vehicle" as follows: 'License to operate a motor vehicle' means any driver's license or any other license or permit to operate a motor vehicle issued under or granted by, the laws of the state and/or this municipality including: B. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license.... Since "license" in AMC 9.12.010(B) includes "privilege" to drive, we must determine whether or not Francis had a privilege to drive a motor vehicle either in 1979 when the purported suspension went into effect or in 1980 when he was charged with operating a vehicle while his license/privilege was suspended. "Privilege to drive" is not defined in the municipal ordinances and the Alaska Supreme Court has not considered this issue. In the context of the municipal ordinances and the state's drivers' licensing scheme, we conclude that "privilege to drive" must mean some kind of legal authorization to drive. The privilege in this sense follows issuance of a driver's license or establishment that one fits within an exemption to the licensing requirement. We reject the interpretation suggested by the city that privilege to drive means nothing more than privilege to apply for a driver's license. While we recognize that at age fourteen, Francis had the opportunity under state law to apply for two categories of licenses, see AS 28.15.051, such an opportunity gave him no privilege to drive a vehicle on the public streets; that privilege is earned only by successfully completing the application process, including passing a written test, driving test, and eye test. See AS 28.15.-081. We believe our use of the term privilege — to mean legal authorization to drive — is most consistent with the common sense meaning of the term and with the use of the term "privilege" in various state statutes, including one from which AMC 9.04.250(B) evidently derives. See AS 28.-35.260(5), 28.15.011(b) and (c). See also 14 Blashfield Automobile Law and Practice, § 468.15, at 115 (3d ed. 1969) ("A person seeking to use the streets or highways for the operation of a motor vehicle is asking a privilege from the government . "). These sources all suggest that the privilege to drive is specifically conferred by the government, most commonly following issuance of a driver's license. In addition, we note that the procedural provisions of Title 28, chapter 20, under which Francis' "privilege" was purportedly suspended clearly envision that the driver have a license which can be suspended. AS 28.20.090(1). Both logic and language would be strained if we held that Francis had a privilege to drive in October, 1979, the time of the purported suspension. "Privilege to drive" under AMC 9.04.-250(B) thus does not cover Francis' situation but includes driving privileges by military or diplomatic personnel stationed in the state, the privilege of farmers to drive farming equipment on public highways for brief distances, and other miscellaneous categories of persons not covered by subparts (A), (C), or (D) who are legally authorized to operate motor vehicles in this state. The crime with which Francis was charged is driving while his license/privilege to drive was suspended. A necessary element of this offense is that the license/privilege have been suspended. Since Francis never had any license or privilege to drive, there was nothing to suspend. He, therefore, could not be convicted as charged. See State v. Cady, 136 Vt. 29, 383 A.2d 607 (1978); City of Aberdeen v. Cole, 13 Wash.App. 617, 537 P.2d 1073 (1975). See also People v. Evans, 79 Misc.2d 131, 359 N.Y.S.2d 449 (1974); Bryant v. State, 163 Tex.Cr.R. 544, 294 S.W.2d 819 (1956) (both holding driver cannot be convicted of driving while license suspended if at the time of the alleged offense the driver had no license to suspend). The judgment of the district court is REVERSED. . The other subparts of this ordinance state that "license" includes (A) any temporary license or instruction permit, (C) any nonresident's operating privileges, and (D) a municipal chauffeur's license. AMC 9.12.010(B) and 9.04.250(B) seem to derive in general terms from AS 28.15.291 and 28.35.260(5). . Webster's New World Dictionary defines "privilege" as follows: 1. a right, advantage, favor, or immunity specifically granted to one; esp., a right held by a certain individual, group, or class, and withheld from certain others or all others 2. a basic civil right, guaranteed by a government [the privilege of trial by jury].... . Separate statutory sections discuss the applicability of the financial responsibility laws to unlicensed drivers. These sections provide simply that the unlicensed driver subject to these laws "may not be licensed" until certain conditions are met; they do not use the language of "suspending" or refer to any "privilege" the unlicensed driver may have had. AS 28.20.160, 28.20.250. . The purported suspension is not wholly a nullity. Under AS 28.20.160, Francis can be kept from getting a license for the specific period, and he may be punished if he operates a vehicle without a license. . Our resolution of this matter makes it unnecessary to determine whether driving without a license is a lesser included offense of driving with license suspended. Driving without a license under AS 28.15.-011(b) and driving while license suspended, AS 28.15.291(a), are both misdemeanors with possible penalties of up to 90 days imprisonment, $500 fine, and license suspension or revocation. AS 28.35.230(a), (b). Although a violation of the former section carries no mandatory minimum sentence equivalent to the 10-day jail sentence, and one-year license revocation of the latter, the available maximum penalties are the same. By declining to permit conviction of a never licensed driver under AS 28.15.291(a), this court would not enable offenders to avoid serious penalties. The municipal code provides more stringent possible penalties in case of a violation of AMC § 9.12.010(B) (driving while license suspended) ($1000 fine and/or one year in jail) than of AMC § 9.12.010(A) (driving without a license) ($500 fine and/or 30 days in jail), and AMC § 9.12.010(B) also carries a mandatory minimum of 10 days' imprisonment and a period of license revocation. However, the maximum sentences are rarely imposed, and to refuse to stretch AMC § 9.12.010(B) to include never licensed drivers will not permit such drivers to avoid serious penalties in cases warranting such sanctions.

9095495

Lee LAWSON, Appellant, v. Ernest and Linda HELMER, Appellees

Lawson v. Helmer

2003-09-26

No. S-10034

724

729

77 P.3d 724

77

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:36:35.701622+00:00

CAP

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

Lee LAWSON, Appellant, v. Ernest and Linda HELMER, Appellees.

Lee LAWSON, Appellant, v. Ernest and Linda HELMER, Appellees. No. S-10034. Supreme Court of Alaska. Sept. 26, 2003. Lee Lawson, pro se, Juneau. No appearance for appellees. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2504

15800

OPINION CARPENETI, Justice. I. INTRODUCTION Lee Lawson appeals the superior court's holding that his defamation claim against Ernie and Linda Helmer fails as a matter of law and the court's award of attorney's fees to the Helmers. We hold that the superior court correctly held that the Helmers' testimony and statements to a custody investigator are immunized from Lawson's derivative civil defamation suit. We affirm the superior court's dismissal of Lawson's claims and its award of attorney's fees to the Helmers. II. FACTS AND PROCEEDINGS A. Facts Lee Lawson has known Ernie and Linda Helmer for over thirty years. Lawson and Ernie Helmer were best friends. Lawson and his former girlfriend, Tammy Reynolds, lived with the Helmers while Tammy was pregnant with his daughter Ariel. The Hel-mers were present when the child was born in January 1999, and consider themselves her "de facto grandparents." In May 1999 Lawson and Reynolds separated, thereafter engaging in a protracted child custody dispute. After Lawson's and Reynolds's separation, the relationship between Lawson and the Helmers deteriorated. Linda Helmer sought a long-term protective order against Lawson before Magistrate John W. Sivertsen, Jr. in November 1999. She testified that Lawson sexually assaulted her in 1991 or 1992 and had threatened her with violence on several occasions. Magistrate Sivertsen found by a preponderance of the evidence that Lawson committed a erime involving domestic violence against Linda Helmer and granted the protective order. The Helmers also became involved in the custody dispute before Superior Court Judge Patricia A. Collins. They testified in the custody dispute between Lawson and Reynolds and made statements to a court-appointed custody investigator who filed a report with the court. Over the course of the custody proceeding (1) the Hel-mers testified at trial that prior to Ariel's birth, Lawson planned to kidnap Kevin, his son from a relationship with a former girlfriend, Valerie Lawson; (2) Ernie Helmer stated to the custody investigator that Lawson admitted to Ernie that he obtained an "X-rated" video of Valerie during their eusto-dy dispute over Kevin, by breaking into her storage locker; (8) Linda Helmer stated her opinion that a gunshot wound sustained by Lawson during his custody dispute with Valerie was probably self-inflicted; (4) Ernie Helmer stated to the custody investigator that Lawson had a handgun of the type used to inflict the gunshot wound and had asked Ernie not to tell anyone about it; and (5) Linda Helmer testified that Lawson sexually assaulted her in 1992. The superior court entered its findings of fact and conclusions of law and a custody decree continuing joint legal custody and granting primary physical custody of Ariel to Reynolds in December 20002. We upheld that decision. B. Proceedings Lawson sued the Helmers for defamation based on their statements during the custody proceedings before Judge Collins and the protective order proceedings before Magistrate Sivertsen,. He claimed that the Hel-mers' statements on the above five subjects were false and defamatory. He sought nominal and punitive damages against the Hel-mers, as well as an order forbidding them from having any contact with Ariel. On January 11, 2001 Judge Collins ruled that Lawson's claims fail as a matter of law. She also ordered him to pay the Helmers $6,174 in attorney's fees. Lawson appeals both the dismissal of his claims and the award of attorney's fees. The Helmers declined to file a brief. III. STANDARD OF REVIEW We exercise our independent judgment when reviewing issues of law, " 'adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and policy' " The superior court's decision-that Lawson's claims fail as a matter of law due to the Helmers' witness immunity-concerns an issue of law that is subject to de novo review. We also review constitutional questions de novo. IV. DISCUSSION A. The Helmers' Testimony and Statements in Prior Judicial Proceedings Are Absolutely Privileged and the Helmers Are Accordingly Immune from this Action for Defamation. Lawson asserts that the superior court's grant of immunity to the Helmers was improper, claiming that the court used immunity as a means to avoid admitting that it had made a mistake in the custody dispute after Lawson proved that the Helmers had committed perjury in that proceeding. Lawson misunderstands the superior court's application of absolute privilege and the resulting witness immunity for the Helmers testimony and statements to the custody investigator. As we said almost thirty years ago in Nizinski v. Currington: The authorities are virtually unanimous that defamatory testimony by a witness in a judicial proceeding, which is pertinent to the matter under inquiry, is absolutely privileged. In such instances an action for libel or slander will not lie even though the testimony is given maliciously and with knowledge of its falsity.[ ] Because testimony that is pertinent to the matter under inquiry is absolutely privileged, the witness is immune from later suit. The Restatement (SEconp) or Torts § 588 provides that: A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which [the witness] is testifying, if it has some relation to the proceeding.[ ] Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying. The widespread recognition of the privilege is predicated on the idea that parties are protected from witness misconduct by (1) their ability to reveal any deficiencies in testimony through cross-examination and (2) the threat of prosecution for perjury or other sanctions against the witness. While Nizinski v. Currington is dispositive of this case, our recognition of the privilege and resultant immunity from suit for defamation in Zamarello v. Yale is also instructive here. In Zamarello we held that a party to a property dispute is immune from suit for slander or disparagement of title when the party files a quitclaim deed that has a "direct relation to [the] claim of an interest in the property." In recognizing the privilege for the filing of a quitelaim deed related to judicial proceedings, Zamarello effectively adopted the Restatement (Second) or Torts § 587, which provides: A party to a private litigation or a private prosecutor or defendant in a eriminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. In sum, the Helmers testimony and related statements made during the course of the prior litigation were absolutely privileged and the superior court correctly determined that the Helmers were immune from Lawson's defamation action. B. The Alaska and Federal Constitutions Do Not Require that the Hel-mers Be Found Liable for Defaming Lawson. Lawson claims that the superior court's decision to grant the Helmers civil immunity when other people have been sentenced to serve time in jail and fined after being convicted of perjury violates the equal protection clauses of the state and federal constitutions. He further argues that the superior court's granting of immunity based on tort law should be reversed because it elevated tort law over the constitution. These constitutional claims are without merit. Lawson does not state a cognizable equal protection claim, as "the basis of any equal protection claim is disparate treatment of similarly situated persons." Lawson fails to establish this fundamental aspect of an equal protection violation because his civil defamation case is so dissimilar to a criminal perjury case. The purpose of the perjury statute is primarily to protect the integrity of court proceedings, not to protect the object of the perjury, and we have never allowed a party to sue a witness for defamation. Furthermore, the fact that other citizens have been convicted of perjury in the past is irrelevant because the Helmers were not prosecuted for perjury. Lawson's equal protection claims must be denied because he fails to establish the most fundamental aspect of an equal protection claim: that he has been treated differently than a similarly situated person. Lawson also contends that his right to relief in this case is supported by Alaska's constitutional qualification of the right to free speech. He argues that we must reverse the superior court's decision because the Alaska Constitution provides that everyone is responsible for the abuse of their right to free speech. In providing that citizens are responsible for abusing their right to free speech, the Alaska Constitution did not create an absolute right to sue others for defamation. Additionally, Alaska's perjury statute, AS 11.56.200, adequately fulfills any constitutional requirement that witnesses be held responsible for abusing their free speech rights. C. Lawson Has Waived His Claim That the Superior Court Erred by Awarding Attorney's Fees to the Helmers. Lawson contends that the superi- or court erred by awarding $6,174 in attorney's fees to the Helmers under AS 09.30.065(a)(1). We have previously declined to reach an issue when a party mentioned it only in passing in his statement of the case, failed to discuss it in the argument portion of his brief, and devoted one sentence to argu ing the issue in his reply brief. In this case, Lawson fails to offer any support for his claim in the "statement of the issues for review" that the award of attorney's fees was unconstitutional because it places a deterrent on his right to "petition the government for a redress of grievances." Though we relax some procedural requirements for a pro se litigant where the litigant has made a good faith attempt to comply with judicial procedures, Lawson has not met this standard here. We decline to reach this issue because Lawson presented no argument at all in support of his claim. v. CONCLUSION Because immunity from derivative defamation suits is necessary to encourage the full and uninhibited testimony of witnesses such as the Helmers, and because Lawson was fully protected from any alleged misconduct of the Helmers by several procedural safeguards, we AFFIRM the superior court's decision dismissing the defamation suit as a matter of law. We also affirm the award of attorney's fees because Lawson waived the issue by failing to brief it adequately. . See generally Lawson v. Reynolds, Mem. Op. & J. No. 10053, 2002 WL 1486484 (Alaska July 10, 2002). . Id. at *2. . Id. at *10. . Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Brandon v. Corrs. Corp. of Am., 28 P.3d 269, 273 (Alaska 2001) (quoting Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999)). . Lawson attempts to extend his defamation complaint in his appellate brief by asserting that the Helmers made "several false criminal allegations to many peers and government people." But Lawson's brief to the trial court claimed only that the Helmers had defamed him through their testimony and statements to the custody investigator. Accordingly, the superior court's decision was confined to those allegations. Because Lawson failed to properly raise the Helmers' alleged defamation outside of the child custody and protective order proceedings, we will not consider it on appeal. We note that our decision in this case does not treat as privileged any defamatory statements by the Helmers that were unconnected to either the child custody or protective order proceedings. . 517 P.2d 754 (Alaska 1974). . Id. at 756 (citation omitted). . Id. . Restatement (Second) or Torts § 588 (1977). . See, e.g., Briscoe v. LaHue, 460 U.S. 325, 333, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (recognizing that without inmunity "witnesses might be reluctant to come forward to testify" and that once "on the stand, his testimony might be distorted by the fear of subsequent liability," while holding that 42 U.S.C. § 1983 does not abrogate absolute witness immunity); Couch v. Schultz, 193 Mich.App. 292, 483 N.W.2d 684, 686 (1992) (stating that the privilege ensures "that participants in judicial proceedings are free to express themselves without fear of retaliation") Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848, 711 A.2d 251, 255 (1998) (recognizing that "[the purpose of this privilege is to encourage witnesses to testify and to ensure that their testimony is not altered or distorted by the fear of potential liability"); Binder v. Triangle Publ'ns, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971) (stating that immunity is extended "to witnesses to encourage their complete and unintimidated testimony in court"); Deatherage v. State, Examining Bd. of Psychology, 134 Wash.2d 131, 948 P.2d 828, 830 (1997) (recognizing that "the administration of justice requires witnesses in a legal proceeding be able to discuss their views without fear of a defamation lawsuit"). . See, e.g., Overman v. Klein, 103 Idaho 795, 654 P.2d 888, 893 (1982) (stating that there is minimal need for civil defamation suits regarding statements made in course of judicial proceedings because witnesses are "subject to the rigors of cross-examination and the penalty of perjury"); Binder, 275 A.2d at 56 (recognizing that "the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings"); Bruce v. Byrne-Stevens & Assocs. Eng'rs., Inc., 113 Wash.2d 123, 776 P.2d 666, 667 (1989) (stating that "witness'[s] reliability is ensured by [the] oath, the hazard of cross-examination and the threat of prosecution for perjury"). . 514 P.2d 228 (Alaska 1973). . Id. at 231. . Id. at 230-31 (citing Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405, 409 (1956)). . Alaska Const. art. I, § 1 provides in relevant part "that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State." . U.S. Const. amend. XIV, § 1 provides in relevant part that "[nlo state shall . deny to any person within its jurisdiction the equal protection of the laws." . Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001). . Harrison v. State, 923 P.2d 107, 109 (Alaska App.1996). . Alaska Const. art. I, § 5 provides that "[elv-ery person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." . Lawson makes a related argument that the superior court's decision should be overturned in order to allow the Juneau Police Department to pursue perjury charges against the Helmers. Lawson contends that the Juneau Police Department refused to "pursue [the Helmers] for perjury" because of the superior court's grant of immunity. In order to clear up any misunderstanding, we note that the grant of immunity in this case does not protect the Helmers from prosecution for perjury. . Bishop v. Clark, 54 P.3d 804, 815 n. 32 (Alaska 2002). . Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).

9093156

William GRIMM and Merrill McGahan, Appellants, v. Thomas H. WAGONER, State of Alaska, Division of Elections, and Loren Leman, in his official capacity as Lieutenant Governor, Appellees

Grimm v. Wagoner

2003-09-19

No. S-10953

423

438

77 P.3d 423

77

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:36:35.701622+00:00

CAP

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

William GRIMM and Merrill McGahan, Appellants, v. Thomas H. WAGONER, State of Alaska, Division of Elections, and Loren Leman, in his official capacity as Lieutenant Governor, Appellees.

William GRIMM and Merrill McGahan, Appellants, v. Thomas H. WAGONER, State of Alaska, Division of Elections, and Loren Leman, in his official capacity as Lieutenant Governor, Appellees. No. S-10953. Supreme Court of Alaska. Sept. 19, 2003. Arthur S. Robinson, Robinson & Associates, Soldotna, and John M. Rice, Law Office of John M. Rice, P.C., Juneau, for Appellants. Jeffrey D. Jefferson, The Jefferson Law Office, Kenai, for Appellee Thomas H. Wagoner. Jan Hart DeYoung and Sarah Felix, Assistant Attorneys General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellees State of Alaska, Division of Elections, and Loren Leman. James E. Fosler, Keesal, Young & Logan, Anchorage, for Amicus Curiae Alaska State Legislature. Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.

8675

57067

OPINION EASTAUGH, Justice. I. INTRODUCTION Alaska Statute 89.50.030(a) requires candidates for elected office to file disclosure statements containing an "accurate representation" of their financial affairs. State senate candidate Thomas Wagoner filed a disclosure statement that failed to disclose several actual or potential financial interests. Two voters filed a private post-election enforeement action under AS 39.50.100, claiming that AS 39.50.060(b) required Wagoner to forfeit the election. The superior court conducted a trial and held for Wagoner. We conclude that the superior court did not err in applying a "substantial compliance" standard in deciding whether Wagoner satisfied the disclosure law. We also conclude that it did not err in alternatively ruling that if the lawsuit was a Title 15 election contest, plaintiffs had to prove that the omissions had an effect on the outcome of the election. We therefore affirm. II. FACTS AND PROCEEDINGS Thomas H. Wagoner, a candidate for state Senate District Q, filed his Public Official Financial Disclosure Statement May 17, 2002. Wagoner was elected in the November 5, 2002 general election. He defeated the incumbent by 123 votes, and also defeated two other candidates. On November 18 William Grimm and Merrill McGahan, two qualified voters, filed a civil action under AS 89.50.100 to enforce AS 89.50, Alaska's Public Official Financial Disclosure Law. Their complaint alleged that Wagoner materially and substantially failed to disclose some of his business interests, and sought an order preventing him from taking office. They also moved for a temporary restraining order to enjoin the Division of Elections from certifying the Senate District Q election results. Their supporting memorandum explained that their civil action sought to implement AS 39.50.060(b), which prevents the Heutenant governor from certifying the election of "elected officials" who fail to comply with AS 89.50. The complaint did not name the Division of Elections as a defendant. On November 25 the superior court ruled that the Division of Elections was an essential party and denied Grimm and McGahan's injunction motion as premature. Their amended complaint included the Division of Elections and the lieutenant governor as defendants, but on November 27 the superior court again denied their injunction motion, finding irreparable harm unlikely and the probability of success on the merits "extraordinarily low." On the same day, the Director of the Division of Elections certified Wagoner's election. Alaska Public Offices Commission (APOC) staff reviewed Wagoner's disclosures after Grimm and McGahan filed suit. Informed by APOC that a fine would acerue for failure to file properly, Wagoner amended his disclosure statement November 21 to acknowledge additional business interests and associations. Wagoner explained to APOC that he had believed certain matters, including his position as officer of a homeowners' association in California, did not have to be disclosed under the disclosure law. Following its audit, APOC staff issued a "Recommendation for Commission Action." The staff found that some of the new information provided by Wagoner, such as disclosures relating to inactive business interests, did not need to be disclosed under AS 89.50. But the staff also found that two omissions did require disclosure-Wagoner's position in the homeowners' association, and a business interest in Wagoner Rental Properties, a real estate proprietorship Wagoner had previously listed as a source of income. Wagoner had previously disclosed the location of the rental properties, but failed to include Wagoner Rental Properties as a business interest in the business interest schedule of the disclosure form. The maximum fine for these omissions, at ten dollars per day from the time the disclosure statement was due until it was complete, was $1,740, per staff calculations. Nevertheless, the staff recommended that the fine be reduced to $150 because Wagoner was an inexperienced filer, his omission of the business interest in Wagoner Rental Properties was inadvertent, and he had cooperated fully with APOC staff by correcting his omissions as quickly as possible. The APOC commissioners met in early December, considered the audit, and accepted the staff recommendation. APOC issued a December 18 order identifying disclosure violations, and fined Wagoner $150 for the two omissions cited in the staff recommendation. On the same day APOC issued its order, Wagoner wrote to APOC, stating that a review of his financial records with his personal accountant revealed three other omissions that were potentially disclosable: the name of an occasional tenant of Wagoner Rental Properties; a "loan" from his mother used to pay for her convalescent care; and a Small Business Administration loan that had been paid off, Wagoner filed amendments to his disclosure statement reflecting these matters. The APOC commissioners apparently had not taken action as to these amendments at the time the present appeal was commenced in our court. On December 28 the superior court heard oral argument on the parties' motions to establish the applicable law and for summary judgment. On the day of oral argument Grimm and McGahan filed a proposed second amended complaint alleging disclosure failures not alleged in their earlier complaint. By order of December 26, the superior court denied the parties' motions for summary judgment, and ruled that the case would be treated as an election contest. The court ruled that failure to comply with AS 39.50 may constitute a "corrupt practice" under the election contest statute, and that the disclosure requirements did not create a constitutionally impermissible qualification for office. The court also ruled that in construing AS 89.50 together with AS 15.20, the proper question before the court was whether Wagoner's alleged failures to disclose were sufficient to change the result of the election-the standard for contesting an election under AS 15.20.540. The court rejected the plaintiffs' assertion that AS 39.50 should be strict, ly construed. Although it applied the general framework of an AS 15.20 election contest to the plaintiffs' challenge, the court ruled that one procedural requirement for a Title 15 election contest-the ten-voter requirement -was "overcome" by the precedence clause in the ballot initiative that created Title 39's Public Official Financial Disclosure Law. Grimm and McGahan filed a petition for review of the December 26 order. While that petition was pending in this court, the superior court conducted a bench trial on January 2, 2008. On January 6 the superior court issued a memorandum decision and judgment dismissing the plaintiffs' complaint. The superior court dismissed on alternative theories The court ruled that if the plaintiffs' challenge were considered an election contest under Title 15, it would fail because the plaintiffs did not show that Wagoner's alleged nondisclosures had an effect on the outcome of the election. The court alternatively ruled that Wagoner had substantially complied with the requirements of AS 39.50, and that he was therefore not subject to forfeiture of office under AS 39.50.060(b). Therefore, whether it was treated as a Title 15 election contest or as an AS 39.50 enforcement proceeding, the plaintiffs' challenge failed. Grimm and MeGahan appealed. We ordered accelerated briefing and heard oral argument January 17 because January 21 was the day legislators were to be installed in office. We issued a dispositive order January 17. The order affirmed the superior court's judgment dismissing the plaintiffs' lawsuit. This opinion explains our reasons for affirming. III. DISCUSSION A. Standard of Review Questions regarding the application, interpretation, and constitutionality of a statute are questions of law to which we apply our independent judgment. We interpret the Alaska Constitution and Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." We also use our independent judgment to review whether the superior court applied an incorrect legal standard. "Because the public has an important interest in the stability and finality of election results, we have held that 'every reasonable presumption will be indulged in favor of the validity of an election.' " Under Alaska Civil Rule 52(a) a trial court's findings of fact will not be set aside unless they are clearly erroneous. We will reverse a trial court's findings only if we are left with a definite and firm conviction that the court erred. We apply our independent judgment to the trial court's application of law to undisputed facts. B. It Is Not Necessary To Decide Whether AS 39.50.060(b) Provides a Post-Certification Remedy. Plaintiffs claim that AS 39.50.060(b) requires that Wagoner be ordered to forfeit his election. Because plaintiffs' claims were tried after the Division of Elections certified Wagoner's election, the state and amicus cu-riage Alaska State Legislature argue that the remedies listed in AS 39.50.060(b) are unavailable. Subsection .060(b) provides: Any person failing or refusing to comply with the requirements of this chapter, in addition to the penalties prescribed, shall forfeit nomination to office and may not be seated or installed in office if the person has not complied. Nominated, hired, or appointed officials, commissioners, chairs, or members of commissions or boards specified in AS 39.50.200(b) may not be confirmed by the legislature if compliance has not been made. In the case of elected officials, the lieutenant governor, or other certifying authority, may not certify a person's nomination for office or the person's election to office if compliance was not made within the time required. The nomination to office or election to office shall be certified to the highest vote getter for that nomination for that office or election to that office who has complied within the times required and who shall be declared nominated or elected. For purposes of this subsection, a person is considered to have complied within the time required if the person complies within 80 days after the due date established by this chapter. The state argues that as a matter of statutory construction, AS 39.50.060(b) does not authorize any sanction that could operate after the candidate's election is certified. The state contends that the first sentence of the subsection is a "broad declaration of the principle that public officials should not begin office without first complying with the public official financial disclosure requirements," and that implementation of the subsection in this case is governed by the sentence beginning "liin the case of elected officials." The state asserts that the certification clause in the third sentence of subsection .060(b) only authorizes courts to prevent the Heuten-ant governor from certifying the election of a noncomplying candidate. It is not necessary to decide whether subsection .060(b) provides a post-certification judicial remedy for challenges to "elected officials." Because we hold for other reasons that the superior court did not err in denying the forfeiture remedy, see Parts IIL.D and E below, we do not have to consider this alternative ground for affirming. The state and the legislature also argue that we should construe subsection .060(b) narrowly to avoid interfering with the power delegated by the Alaska Constitution to each legislative house to be "the judge of the election and qualifications of its members." The legislature argues that given this delegation, permitting a post-certification judicial forfeiture remedy could implicate separation of powers principles. Because the result we reach today rejects Grimm and McGahan's arguments on their merits, and consequently does not disturb the certification of Wagoner's election, we do not have to consider whether a different result might have raised separation of powers questions of the sort the legislature discusses in its amicus brief. C. We Do Not Need To Decide Whether the Superior Court Properly Applied Title 15 Election Contest Standards. The superior court order establishing the applicable rule of law stated that a failure to disclose under AS 89.50 could be a "corrupt practice" under AS 15.20.540, and that the proper question before the court was whether Wagoner's omissions were sufficient to change the result of the election. "[Alny corrupt practice as defined by law sufficient to change the results of the election" is a ground for an election contest under AS 15.20.540. On appeal Grimm and McGahan argue that the superior court erred in applying Title 15 election contest standards to their AS 39.50.100 action. Whether it erred in doing so presents an ostensibly threshold question, but the superior court's alternative grounds for entering judgment against the plaintiffs make it unnecessary for us to decide this question. The superior court resolved the case by applying Title 15 election contest standards, and alternatively by applying AS 39.50 alone. Because it was proper to dismiss plaintiffs' suit under either approach, we do not need to address whether the superior court properly applied Title 15 election contest standards. For reasons we discuss below, the superior court did not err under either analysis, and we therefore do not decide whether the superior court erred by applying Title 15 standards to this AS 39.50.100 action. D. The Lawsuit Cannot Succeed as a Title 15 Election Contest Because Plaintiffs Did Not Demonstrate an Effect on the Outcome of the Election. Applying Title 15 election contest standards to plaintiffs' lawsuit, the superior court ruled against them for two reasons. First, it found that although Grimm and McGahan demonstrated a "reckless violation" of the disclosure requirements, they did not prove a "knowing violation, as is required by all the other types of corrupt practices which could lead to loss of this election contest." Second, it reasoned that even if the plaintiffs had demonstrated a "corrupt practice," they failed to show that Wagoner's nondisclosures had an effect on the outcome of the election, as AS 15.20.540 requires. On appeal Grimm and McGahan argue that it was error to apply a Title 15 analysis to their lawsuit, but they do not argue that they demonstrated an effect on the outcome of the election. It is unnecessary to address the superior court's first reason for dismissing the lawsuit under Title 15 because the court's second reason-the absence of a showing that Wagoner's alleged failures had an effect on the outcome of the election-is determinative. The superior court noted in its decision that Grimm and McGahan "acknowledge that they do not have sufficient evidence to prove the high standard of election contest cases. They cannot show that the disclosure failures here were sufficient to change the result of the election." Grimm and McGahan challenge the application of Title 15 election contest standards on appeal, but they do not challenge the superior court's evidentiary findings under this standard. We therefore accept the superior court's finding that Grimm and McGahan did not demonstrate an effect on the outcome of the election. Given this finding, the lawsuit could not succeed as a Title 15 election contest. The superior court did not err in holding that plaintiffs did not satisfy Title 15. E. Substantial Compliance Is the Proper Standard Under AS 39.50.060(b). The superior court alternatively dismissed the lawsuit because it concluded that substantial compliance was the appropriate standard under AS 39.50, and because it found that Wagoner substantially complied with the chapter's disclosure requirements. We consider first whether substantial compliance was the correct standard for enforcing AS 39.50.060(b). 1. Neither the statute nor Alaska precedent specifies the standard of compliance. On appeal Grimm and McGahan argue that AS 39.50.060(b) requires forfeiture for candidates who do not strictly comply with the disclosure requirements of AS 39.50. The state and amicus curiae Alaska State Legislature argue that substantial compliance is the standard for avoiding penalties under subsection .060(b). ' The first sentence of AS 39.50.060(b) states that the subsection applies to "[alny person failing or refusing to comply with the requirements of [the] chapter." (Emphasis added.) The third sentence states that "TiJn the case of elected officials, the lieutenant governor . may not certify . the person's election to office if compliance was not made within the time required." (Emphasis added.) Neither sentence specifies the level of noncompliance required to justify a penalty under subsection .060(b). And neither indicates whether a failure to strictly comply with the disclosure statutes is sufficient to require forfeiture of office under subsection .060(b). We must therefore determine what standard the legislature intended to be applied when forfeiture is sought under AS 39.50.060(b). In deciding to apply the substantial compliance standard, the superior court reasoned that this standard was needed to distinguish trivial from non-trivial errors and omissions. Grimm and McGahan essentially give three reasons why strict compliance should be the appropriate standard. First, they claim that "Itlhe unambiguous language of AS 39.50.060(b) is mandatory." We are unconvinced that the language of the statute is clear and mandatory in the way plaintiffs think. Subsection .060(b) does not specify the level of noncompliance necessary to trigger a forfeiture of office. Contrary to plaintiffs' supposition, the statute's statement that any person failing to comply "shall forfeit nomination to office and may not be seated or installed," does not indicate an appropri ate level of compliance. That the penalty for a violation may be mandatory does not tell us how to decide whether a violation has occurred. Second, the plaintiffs observe that AS 39.50.0830 requires the disclosure of "all" relevant business interests and sources of income, and implicitly argue that a mandate for strict compliance exists in the disclosure requirements themselves. This argument is also unpersuasive. Passages in AS 89.50.030(b) undeniably require that disclosure statements must include "all" or "each" relevant business interest or source of income. But the mandatory and comprehensive language of these requirements in subsection .080(b) does not clarify the level of noncompliance necessary for forfeiture under subsection .060(b). The mandatory and comprehensive language of the disclosure requirements is not surprising. Less demanding language would make it impossible to determine what disclosure is needed and the sufficiency of a given disclosure enforcement. Nonetheless, it remains unclear what level of noncompliance with the disclosure requirements can lead to the forfeiture penalty de-seribed in subsection .060(b). The level of compliance required by the disclosure requirements of subsection .080(b) does not specify the level of noncompliance necessary to trigger the penalties described in subsection .060(b). Third, the plaintiffs assert that we have required strict compliance in analogous situations, and cite Silides v. Thomas, Falke v. State, and State, Alaska Public Offices Commission v. Marshall in support. In Silides and Falke we applied a strict compliance standard to the filing deadlines for required election disclosures, and noted that election filing deadlines are generally strictly enforced. In Marshall we declared void the election of a local municipal officer who filed a preelection disclosure form long after the election. In that case we observed that the candidate's violations "cannot be characterized as trivial," and expressly reserved the question whether a trivial violation could trigger the forfeiture sanction. These cases are distinguishable from the present situation. We agree with the superi- or court that there is a difference between strictly enforcing election filing deadlines, and measuring the extent to which a disclosure complies with substantive requirements. Determining whether a candidate's disclosure statement is substantively in compliance with the requirements of the disclosure law is markedly more subtle than determining whether the statement was timely filed. Assessing compliance with filing deadlines is straightforward; a statement is either timely filed or it is not. Given the complexities of assessing substantive compliance, it is not apparent why the strict compliance standard applicable in the election-filing deadline cases should apply here. Grimm and McGahan also argue that a failure to comply with the substance of AS 39.50.0380 is actually a failure to satisfy the filing deadline, because the statute requires disclosure of all relevant interests. They reason that Wagoner's disclosure statement was not complete, and was therefore not timely. But this argument tells us nothing about whether the timely filed disclosure was substantively sufficient. Accepting the plaintiffs' logic, any disclosure deficiency no matter how trivial would be an untimely filing. We reserved in Marshall the question whether forfeiture could be triggered by trivial failures to comply with disclosure requirements. That reservation implicitly recognized the difference between substantive compliance and compliance with filing deadlines. We decline to merge substantive compliance with deadline compliance, and conclude that neither the statute nor Alaska precedent specifies the level of substantive compliance required to avoid forfeiture of office under AS 39.50.060(b). 2. Applying a substantial compliance standard is consistent with the "accurate representation" language of AS 39.50.030(a). Grimm and McGahan's private enforeement action under AS 39.50.100 seeking an AS 39.50.060(b) forfeiture necessarily assumed that Wagoner failed to satisfy AS 39.50.030. Subsection .080(a) requires that each disclosure statement "be an accurate representation of the financial affairs of the public official or candidate." The criterion for measuring compliance with the substantive requirements of AS 39.50 is therefore whether the disclosure provides an "accurate representation" of the candidate's finances. To apply subsection .060(b)'s penalty provisions, at a minimum a court would have to find that a candidate failed to provide an "accurate representation" under subsection .030(a). Is strict compliance with the disclosure requirements necessary to provide an "accurate representation" of a candidate's finances? The answer is "no." "Accurate" means variously "in exact conformity to fact," or "conforming closely to a standard." Use of "representation" as part of the statutory standard is more consistent with the latter definition. A "representation" is a depiction or deseription, and the phrase "accurate representation" implies close conformity rather than absolute precision. An "accurate representation" does not necessarily connote or imply flawless perfection; it can be achieved with something less than absolute exactitude. We therefore read "accurate representation" in subsection .030(a) as not precluding a substantial compliance standard for enforcement of subsection .060(b). A candidate can "comply" with subsection .080(a) for the purposes of subsection .060(b) without strictly complying with the substantive disclosure requirements. 3. Substantial compliance is consistent with the purposes of the chapter. Enforcing AS 839.50.060(b) for failing to substantially comply with the disclosure requirements is consistent with the statutorily declared purposes of the disclosure statute. Alaska Statute 39.50.010(a) lists these purposes: (1) to discourage public officials from acting upon a private or business interest in the performance of a public duty; (2) to assure that public officials in their official acts are free of the influence of undisclosed private or business interests; (3) to develop public confidence in persons seeking or holding public office, enhance the dignity of the offices and make them attractive to citizens who are motivated to public service; and (4) to develop accountability in government by permitting public access to information necessary to judge the credentials and performance of those who seek and hold public office. These purposes call for an "accurate representation" of a candidate's financial interests, but they do not require or imply absolute precision. In the context of subsection .060(b), mandatory forfeiture for public officials who do not strictly comply with the substantive disclosure requirements is not necessary to effectuate these goals. Grimm and McGahan argue that "[dlisclosure of the candidate's financial and business interests is required so that voters can make an informed decision at the ballot box." Public access to accurate information is necessary to ensure governmental integrity, but minor errors in disclosure statements do not interfere with the public's ability to judge the credentials of candidates for public office. It would also seem that the expressed purpose of attracting citizens to public office would be defeated if trivial or inconsequential errors could deprive voters of the officers they elected. Furthermore, subsection .010(b)(5) asserts that "reasonable disclosure requirements do not have the effect of chilling the exercise of the right of a qualified person to seek or hold public office." The prospect of mandatory forfeiture of elected office despite substantial compliance with AS 39.50 could chill interest in public office. 4, A strict compliance standard would thwart voter intent in contravention of Alaska law. We have often stated that "every reasonable presumption will be indulged in favor of the validity of an election." There is a "well-established policy" favoring the stability of election results in the face of technical errors or irregularities not affecting election results. We have explained this policy noting that "[clourts are reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own, and '[wlhere any reasonable construction of [a] statute can be found which will avoid such a result, the courts should and will favor it.' " In light of this policy, plaintiffs in Title 15 election contests carry a heavy burden. We have defined "malconduct" under AS 15.20.5400 as "a significant deviation from statutorily or constitutionally prescribed norms." 5 And as discussed previously, to maintain an election contest under AS 15.20.540, plaintiffs must demonstrate an effect on the outcome of an election. Rigidly applying a forfeiture sanction for inconsequential violations is inconsistent with the presumptive validity of election results, and the "well-established policy" favoring election results in the face of technical irregularities. Furthermore, applying a forfeiture sanction for failures to strictly comply with disclosure requirements would significantly undermine the high burdens we have applied in election contests, and the statutorily required showing of an effect on the outcome of the election. A strict compliance standard under AS 39.50.060(b) would thwart voter intent in contravention of Alaska law. Substantial compliance is more consistent with Alaska's election jurisprudence. Of course AS 15.20 contains substantive provisions that are not duplicated in AS 39.50. But it would be anomalous to impose the harsh remedy of forfeiture of elected office under AS 39.50.060(b) for an inconsequential disclosure omission given the high causal standard applicable to election contests. 5. A substantial compliance standard is supported by Alaska Public Offices Commission regulations. We also note that APOC regulations support the adoption of a substantial compliance standard. Given the lack of statutory specificity discussed above, APOC regulations serve as a useful interpretive aid. APOC's "[plrocedures for incomplete statements from candidates for state elective office" specify that the lHeutenant governor may not certify the election of a candidate who "has not supplied required information on a major source of income, interest in real property, business interest, loan, or trust." (Emphasis added.) Furthermore, 2 Alaska Administrative Code (AAC) 50.127(d) states that if "information discovered after the withdrawal-of-candidacy deadline indicates that a candidate . has failed to comply substantially with the requirements of AS 39.50 . the staff of the commission shall undertake a preliminary investigation." (Emphasis added.) Moreover, 2 AAC 50.110(c)(1) states that APOC staff may ree-ommend a ten dollar per day fine if the filer "failed to comply substantially with AS 39.50 . by failing to report in the filer's statement a major source of income, interest in real property, business interest, loan, trust, or other substantial financial interest." (Emphasis added.) Agency interpretations are not binding on our interpretation of a statute, but APOC's regulations provide useful guidance here. In the analogous context of administrative appeals, when a question of law involves agency expertise we will "defer to [an] agency's interpretation of a law unless it is unreasonable." APOC's adoption of a substantial compliance standard implies that APOC has interpreted its enabling statute to require that standard or at least to be consistent with that standard. Further, it would seem incongruous to impose a forfeiture sanction if there is substantial but not strict compliance, when substantial compliance is the standard APOC has adopted in deciding whether to undertake an investigation or impose a civil penalty. Moreover, both the regulations and AS 39.50 contemplate a graduated response for disclosure violations. Under 2 AAC 50.110 the civil penalty for incomplete disclosures increases after fifteen days of lateness, and the maximum per diem fine is available for continuous failures, or failures to comply substantially with the disclosure requirements. Alaska Statute 39.50.060(a) provides eriminal penalties for officials who "refuse[ ] or knowingly faill ]" to comply, and sections .070 and .080 prevent confirmation of executive officials and commissioners until they comply. The opportunity to cure disclosure defects in sections .070 and .080 for officials subject to subsection .060(b), and the criminal penalties of subsection .060(a), indicate a measured approach to disclosure violations. Context implies that forfeiture of office is only available for more serious offenses. Imposing a forfeiture sanction for failing to strictly comply would produce disproportionate results under this enforcement regime. Grimm and McGahan argue that applying a substantial compliance standard would "very likely cre ate more, rather than fewer, conflicts in the enforcement of election filing deadlines." But applying a strict compliance standard for the forfeiture penalty is not consistent with the enforcement regime. We also think that reserving the post-election forfeiture penalty for failures to substantially comply with the disclosure requirements will not unduly burden APOC or the courts in enforcing the disclosure law. For the reasons we discuss in Parts IIL. E.1-5, we conclude that substantial compliance is the appropriate standard for imposing the forfeiture remedy of AS 39.50.060(b). F. The Superior Court Did Not Clearly Err in Finding that Wagoner Substantially Complied with the Requirements of AS 39.50. Having determined that substantial compliance is the appropriate standard under AS 39.50.060(b), we now consider whether it was error to find that Wagoner substantially complied with the disclosure requirements. On appeal Grimm and McGahan argue generally that the superior court erred in finding Wagoner's nondisclosures to be trivial; they specifically challenge some of the superior court's determinations regarding particular allegations of nondisclosure. Deciding whether a candidate substantially complied with AS 89.50 in the context of subsection .060(b) requires both factual and legal determinations. A trial court must determine whether a candidate violated the disclosure laws, and also whether any possible violations rendered a candidate out of substantial compliance. The overarching question is whether the disclosures provided an "accurate representation" of the candidate's finances. In making this determination a trial court may permissibly look to the opinion of the administrative agency responsible for enforcing the disclosure law. APOC has both administrative expertise and the dedicated responsibility of policing disclosures under AS 89.50. Whether APOC found a disclosure failure, fined a candidate, or assessed a reduced penalty, for example, is relevant in analyzing a candidate's compliance with AS 89.50. 1. The superior court did not err in finding that several alleged failures did not require disclosure. Grimm and McGahan's complaint alleged that Wagoner failed to disclose eight different interests. The superior court found that six of the eight interests alleged related to interests Wagoner was not required to disclose. Counts I, V, and VII of the complaint alleged that Wagoner failed to disclose interests in Got Fish, Nuka Island Fishing Charters, and Chisik Island Charters, respectively. On appeal the plaintiffs argue that the superior court erred in concluding that these interests did not require disclosure because AS 39.50.0830 requires the disclosure of all business interests, regardless of activity, and because there was business activity for Got Fish,. The activities alleged for Got Fish include obtaining a business license and opening a checking account. Following its review of Wagoner's disclosures, APOC staff noted that "[the Commission has never required inactive businesses be reported." APOC staff considered that Wagoner obtained a business license for Got Fish in order to obtain a checking account, but staff concluded that Got Fish, Nuka Island Fishing Charters, and Chisik Island Charters were inactive in the reporting year, and did not require disclosure. The APOC commissioners agreed, and did not find disclosure violations for these three interests. At trial the superior court considered testimony from Wagoner and other evidence relating to the alleged business interests. Relying in part on APOC's review of Wagoner's omissions, the superior court determined that the interests alleged in Counts I, V, and VII did not require disclosure. The superior court distinguished between a candidate's ob ligation to disclose an unprofitable business, and a candidate's permissible omission of a non-operating business. In light of APOC's determination, the superior court did not err in ruling that these business interests did not require disclosure. Count II of plaintiffs' complaint alleged that Wagoner failed to disclose a partnership with the Navarre family. The Na-varres and the Wagoners co-own property in California. APOC staff noted that Wagoner reported his fifty percent ownership interest in the property, and stated that "[the law does not require that the filer name other non-family owners of the property." APOC staff did not find a disclosure failure in Wagoner's omission of the Navarres as co-owners, and the commissioners agreed. The superior court stated that "one might infer an implied partnership" from the joint ownership, but ruled that Wagoner's accurate reporting of his ownership status was sufficient under the statute. The superior court considered testimony from Wagoner and APOC staff, and did not find the existence of a business interest that required disclosure. On appeal Grimm and McGahan argue that the "implied partnership" was an oral partnership agreement under the Uniform Partnership Act, that its existence was evidenced by its checking account, and that Wagoner needed to disclose his dealings with the Navarre family as a partnership interest. In light of APOC's determination, the superior court did not err in ruling that Wagoner did not need to report a partnership with the Navarre family. Wagoner's disclosure of his own financial interest in the property would reveal any potential conflict that might also affect the interests of the co-owner. The plaintiffs suggest that disclosing the partnership was necessary to reveal Wagoner's relationship to the Navarre family, and argue that "Wagoner's status as a Republican Moderate would have been called into question" because "[tlhe Navarres are historically strong democratic candidates in the state." But AS 39.50.080(b)(4) requires the disclosure of interests in real property owned by the candidate, the candidate's spouse, spousal equivalent, or child; it does not require the disclosure of non-family co-owners or political affiliations. - Count IV of the complaint alleged that Wagoner failed to disclose his membership in a Kenai fisherman's cooperative. APOC staff noted that "[the Kenai fisherman's coop was not founded until June 2002" and "therefore, it was not reportable on Mr. Wagoner's 2002 statement." The APOC commissioners agreed with the staff recommendation, and did not find a disclosure violation for Wagoner's omission of his membership in the cooperative. The superior court concluded that Wagoner was not required to disclose his cooperative membership, because the evidence indicated that the cooperative was not founded until after the reporting year. The plaintiffs do not specifically challenge this ruling on appeal. Assuming their general argument encompasses this ruling, we conclude that the superior court did not err in ruling that Wagoner did not need to disclose his membership in the cooperative. The disclosure law only requires reporting of all information from the "preceding calendar year." Count VIII of the plaintiffs' complaint alleged that Wagoner failed to disclose his interest in a commercial fishing business, a commercial fishing vessel, and Alaska limited entry permits. APOC staff noted that "Wagoner properly reported his sources of income from commercial fishing and . is not required to report his fishing vessel or limited entry permits." The APOC commissioners agreed. The superior court ruled that the facts and the law supported APOC's conclusion that these interests did not require disclosure. The plaintiffs do not specifically challenge this determination on appeal. They argue instead that they did not know the name of Wagoner's fishing business when they filed their first amended complaint, and sought to amend this count in their proposed second amended complaint which the court rejected. They claim on appeal that Wagoner's fishing business should have been disclosed under the name Wagoner Enterprises-an allegation not made in their first amended complaint. Given the allegation made in Count VIII, the superior court did not err in determining that the fishing vessel and entry permits did not require disclosure. And contrary to Grimm and McGahan's contentions, we note that any possible error with respect to Counts I, II, IV, V, VII, or VIII would not necessarily constitute reversible error. Because Grimm and McGahan have not convinced us that different legal conclusions were required, we hold that the superior court did not err in determining that the omissions alleged in these counts did not require disclosure. But even if there were a legal error regarding one of these omissions, it would not invalidate the court's findings of substantial compliance. Considering the relative insignificance of these alleged violations, the superior court did not clearly err in finding that Wagoner substantially complied with AS 39.50 for purposes of subsection .060(b). 2. The superior court did not err in finding that Wagoner's disclosure violations were trivial. Count III of the complaint alleged that Wagoner failed to disclose that he was president of Vista Del Jacinto Homeowners Association, a homeowners' association for a condominium he owns in California. Wagoner's initial disclosure statement listed the condominium as a real property interest, but the disclosure law requires filers to report if they are officers or directors of non-profit corporations. Wagoner failed to list his position in the homeowners' association, and APOC staff thought that this was a violation of the disclosure requirements. The APOC commissioners agreed. Count VI alleged that Wagoner failed to disclose his interest in Wagoner Rental Properties, the company under which he operates his real estate rental activities Wagoner reported the location of properties managed under the business and the tenants; he also reported that the properties were a source of income, but he failed to list the name of the business as a business interest. APOC staff concluded that failing to list Wagoner Rental Properties as a business interest violated the disclosure requirements. The APOC commissioners agreed. APOC staff concluded that these two omissions justified assessing a fine, but recommended that it be reduced because Wagoner was an inexperienced filer, because his omissions were inadvertent, and because he cooperated fully with APOC staff to correct his omissions. The APOC commissioners assessed a civil penalty for Wagoner's failures, but reduced his penalty for reasons specified in the staff recommendation and because Wagoner listed the location of the properties and sources of income. The superior court considered testimony from Wagoner and other evidence, and considered the omissions alleged in Counts III and VI in the context of Wagoner's entire disclosure statement. The court ruled that the alleged omissions were violations of the disclosure requirements, but that they were "relatively trivial." The court found that "[the disclosures that were made overlapped the areas missed and provided sufficient basis for interested voters to understand the candidate's interests." The court ruled that the violations "do not justify application of AS 39.50.060(b)," and that Wagoner substantially complied with AS 39.50 despite his disclosure violations. On appeal Grimm and McGahan argue that AS 39.50.060(b) and the disclosure requirements should be strictly enforced, but they do not convince us that the superior court clearly erred in finding that Wagoner substantially complied with the disclosure requirements. In a conclusory fashion Grimm and McGahan mention that Wagoner's failures "cannot be characterized as trivial," but they do not substantiate this proposition. Wagoner's violations had little marginal consequence-ie., complete disclosure would have produced no significant marginal benefit for the voting public. Both failures related to interests partially disclosed in other portions of his disclosure statement. Failing to list the homeowners' association despite listing the relevant property, and failing to disclose the name of the rental business despite listing the properties as a source of income, were immaterial omissions because the incremental disclosure provided by correctly completing the form would have been small. We also note that the APOC staff recommendation and the APOC order reduced Wagoner's fine to a nominal $150. In light of these factors, the superior court did not err in finding that Wagoner's failures were trivial. It was accordingly not clear error to rule that Wagoner substantially complied with AS 39.50 for the purposes of subsection .060(b). In conclusion, Grimm and MeGahan's suit fails under AS 39.50 because substantial compliance is the appropriate standard under AS 89.50.060(b), and because the court did not erv in finding that Wagoner substantially complied with the disclosure requirements. And because the superior court did not err in holding that plaintiffs could not prevail under either Title 15 or Title 39, we need not decide whether the superior court erred in applying Title 15 election contest standards to this Title 39 enforcement action. G. The Superior Court Did Not Err in Denying the Motion To File a Second Amended Complaint. In general, leave to amend pleadings should be liberally granted. But trial courts have discretion to grant or deny leave, and we will reverse a trial court's decision only if we are left with a definite and firm conviction that the trial court erred. Grimm and McGahan sought leave to file a second amended complaint at the December 23, 2002 argument on cross-motions for summary judgment. The superior court denied leave to amend for several reasons. The court considered the general preference for allowing liberal amendment, especially in early stages of litigation, but noted that as parties got closer to trial the policies against amendment carry greater weight. The superior court considered prejudice to the opposing parties, and observed that fairness concerns are amplified if there is little time to prepare for trial. The court ultimately ruled that "[blecause of the need to expedite trial and preparation for election contest cases, and the statutory deadline for complaints, the court will allow amendment any time within the 10 days following certification but not after." The superior court's ten-day rationale was grounded in its reading of Title 15 election contest standards together with AS 39.50. Grimm and McGahan argue on appeal that the superior court abused its discretion in denying them leave to file a second amended complaint. They argue that their proposed second amended complaint listed nondisclo-sures newly revealed in discovery, and that the discovery schedule prevented plaintiffs from alleging these omissions earlier. Furthermore, they argue that the superior court provided no basis for applying the Title 15 deadline, that the superior court failed to balance the hardships, and that the superior court made no finding that amendment would prejudice the defendants. We do not need to consider the superior court's Title 15 rationale for the denial; other factors fully justify the denial. The superior court based its decision on prejudice to the opposing party, the late stage of the litigation, and the expedited trial schedule. We have noted that courts are normally reluctant to allow amendments after summary judgment motions have been filed. In this case plaintiffs sought leave to amend at oral argument on cross-motions for summary judgment. Despite the recent discovery, the highly accelerated schedule culminating in the expedited trial justifies the superior court's ruling. The court made very commendable efforts in conducting the trial and resolving the case with great dispatch. A highly expedited trial schedule was necessary to ensure an opportunity for appellate review before the legislative session was to open on January 21. Refusing to allow amendment under these circumstances was not an abuse of the superior court's discretion. H. We Need Not Decide Whether AS 39.50.060(b) Includes a Willfulness Requirement. The superior court stated near the end of its memorandum decision that "[t]he facts do not demonstrate the kmowing filing of an incomplete disclosure statement." (Emphasis added.) On appeal Grimm and McGahan take this sentence out of context, and suggest that the court erroneously read a scienter requirement into AS 39.50.060(b). Plaintiffs conclude that the court was "confus[ed]" about the required mental states, given the court's earlier conclusion that plaintiffs demonstrated a "reckless violation." It does not appear that the superior court's analysis of the merits depended on a requirement that plaintiffs prove a "knowing" violation. But even if the reference revealed some analytical error, it only could have affected the "corrupt practice" issue relevant to a Title 15 challenge. Because the court had an independent reason for dismissing plaintiffs' action as a Title 15 election contest-the plaintiffs' failure to prove an effect on the outcome of the election-any possible error regarding mental state is harmless. And there is no reason to think Wagoner's mental state had anything to do with the superior court's conclusion that Wagoner substantially complied with the disclosure requirements of AS 89.50. IV. CONCLUSION We therefore AFFIRM the judgment of the superior court. MATTHEWS, Justice, not participating. . Formerly the Alaska Conflict of Interest Law. See Former AS 39.50 (1998). . A Title 15 election contest may be brought by "(al defeated candidate or 10 qualified voters." AS 15.20.540. . Section 3 of the 1974 Initiative Proposal No. 2 provides: "In case of conflict between provisions of this chapter and other provisions contained in the Alaska statutes, the provisions of this chapter shall take precedence." (The published version of the proposal replaced "Act'" with "chapter.") . Plaintiffs filed an emergency motion to convert their petition for review (Supreme Court Case No. S$-10924) into an appeal. We denied the motion as moot because they had already filed a direct appeal (Supreme Court Case No. S-10953). We treated plaintiffs' motion for expedited consideration of the petition as having been filed in the direct appeal, and set an accelerated briefing schedule for the appeal. We denied the plaintiffs' petition January 14, 2003. . McConkey v. Hart, 930 P.2d 402, 404 (Alaska 1997) ("Questions of the application and constitutionality of [a] statute . are questions of law subject to this court's independent judgment."); Todd v. State, 917 P.2d 674, 677 (Alaska 1996) (explaining that "questions of constitutional law and statutory interpretation" call for the application of our "independent judgment"). . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999). . Guttchen v. Gabriel, 49 P.3d 223, 225 (Alaska 2002). . Dansereau v. Ulmer, 903 P.2d 555, 559 (Alaska 1995) (citation omitted) (quoting Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963)). . Walden v. Dep't of Transp., 27 P.3d 297, 301 (Alaska 2001). . Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage, 919 P.2d 759, 762 (Alaska 1996). . AS 39.50 does not define "elected official" in its definitions section-AS 39.50.200-but we hold that a successful legislative candidate is an "elected official" as that term is used in AS 39.50.060(b). . Alaska Const. art. II, § 12. . AS 39.50.060(b) (emphasis added). . See generally AS 39.50.030. Thus, AS 39.50.030(b)(1) states that disclosure statements "must include . the source of all income over $1,000 during the preceding calendar year" and AS 39.50.030(b)(3) states that disclosure statements "must include . the identity and nature of each interest owned in any business." (Emphasis added.) . We compare in Part IILE.2 the mandatory and comprehensive language of AS 39.50.030(b) with the requirement in subsection .030(a) that each disclosure statement be an "accurate representation of the financial affairs of the . candidate." . Silides v. Thomas, 559 P.2d 80 (Alaska 1977). . Falkev. State, 717 P.2d 369 (Alaska 1986). . State, Alaska Pub. Offices Comm'n v. Marshall, 633 P.2d 227 (Alaska 1981). . Falke, 717 P.2d at 373 (disqualifying conflict-of-interest statement filed ten minutes late because "election law filing deadlines are to be strictly enforced"); Silides, 559 P.2d at 86-87 (applying substantial compliance standard to financial disclosure statement where statutory requirements were ambiguous and strict compliance impossible for candidate in Juneau, but applying strict compliance to filing appointment of treasurer notification because "statutory candidate election deadlines are normally strictly enforced"). . Marshall, 633 P.2d at 235-37 (holding that filing preelection report long after election could not be characterized as trivial so as to avoid application of forfeiture sanction). . Id. at 235 we need not resolve at this time whether a 'trivial' violation can preclude applying the forfeiture sanction."). . See supra note 14. . Marshall, 633 P.2d at 235. . AS 39.50.100 permits "[al qualified Alaska voter [to] bring a civil action to enforce any of the sections of this chapter." AS 39.50.060(b) provides a penalty for "[alny person failing or refusing to comply with the requirements of [the] chapter." The disclosure requirements of AS 39.50 are set out in section .030. . AS 39.50.030(a) (emphasis added). . Weester's II New Corpees Dicrionary 8 (1995). . Id. at 941. . See AS 39.50.010(a)(3). . See, eg., Dansereau v. Ulmer, 903 P.2d 555, 559 (Alaska 1995) (quoting Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963)). . Carr v. Thomas, 586 P.2d 622, 625-26 (Alaska 1978). . Id. at 626 (quoting Reese v. Dempsey, 48 N.M. 485, 153 P.2d 127, 132 (1944)). . Hammond v. Hickel, 588 P.2d 256, 258 (Alaska 1978) (relying on Boucher v. Bomhoff, 495 P.2d 77, 80 (Alaska 1972)). . See Dansereau, 903 P.2d at 559; Carr, 586 P.2d at 626. . See Hammond, 588 P2d at 258; AS 15.20,540. . 2 Alaska Administrative Code (AAC) 50.127(c) (2003). . Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983). . Lopez v. Adm'r, Pub. Employees' Ret. Sys., 20 P.3d 568, 570 (Alaska 2001). See also Storrs, 664 P.2d at 552 ("[A] statutory construction adopted by those responsible for administering a statute should not be overruled in the absence of 'weighty reasons.'" (quoting Kelly v. Zamarello, 486 P.2d 906, 910 (Alaska 1971))); Sanford v. State, 24 P.3d 1263, 1266 (Alaska App.2001) (looking to administrative agency's interpretation of statute in attempting to resolve ambiguity in statute). ." 2 AAC 50.110 (2003). . See AS 39.50.060, .070, .080. . 2B Norman J. Statutory Con-stRuctIOoN § 49:03 (6th ed. 2000) ("[PJractical interpretation of a statute by the . officers charged with its administration and enforcement . constitutes an invaluable aid in determining the meaning of a doubtful statute."). See also cases cited supra note 37. . AS 39.50.030(b)(1)-(8). The disclosure statement Wagoner completed called for the disclosure of business interests held "between January 1, 2001 and December 31, 2001," and other interests for "calendar year 2001." . Because allegations relating to Wagoner Enterprises were not included in the complaint the court considered, we do not address the legal status of Wagoner's disclosures for this business interest. We consider the superior court's refusal to grant leave to amend plaintiffs' complaint below in Part III.G. We note, however, that Wagoner Enterprises is listed on Wagoner's initial disclosure statement as a source of income. Any possible failure with respect to Wagoner Enterprises was very probably inconsequential; there would have been little or no incremental benefit of listing Wagoner Enterprises as a business interest, because it was listed as a source of income. . AS 39.50.030(b)(2). . Grimm and McGahan also argue that the superior court erred in finding that Wagoner was 'forthcoming" in providing information to APOC. This was a permissible finding given the superior court's opportunity to assess Wagoner's credibility and its permissible reliance on APOC's analysis. But to the extent the superior court found that Wagoner voluntarily disclosed his financial interests, that finding was immaterial to the superior court's ruling on substantial compliance. . O'Callaghan v. Rue, 996 P.2d 88, 100 (Alaska 2000); see also Alaska R. Civ. P. 15(a) (noting that "leave fto amend pleadings] shall be freely given when justice so requires"). . O'Callaghan, 996 P.2d at 100. . AS 15.20.550 states that an election contest "may be brought in the superior court within 10 days after the completion of the state review." . O'Callaghan, 996 P.2d at 101; Jennings v. State, 566 P.2d 1304, 1312 (Alaska 1977). . Our holding also makes it unnecessary to consider Wagoner's argument that applying a forfeiture sanction to non-incumbent candidates would result in an equal protection violation. We observe that although Wagoner asserts on appeal that "Title 24 does not include a forfeiture penalty for omissions," AS 24.60.250 includes forfeiture language similar to that found in AS 39.50.060(b).

9095533

Betty J. MAGEE, Appellant, v. STATE of Alaska, Appellee

Magee v. State

2003-06-20

No. A-08184

738

739

77 P.3d 738

77

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:36:35.701622+00:00

CAP

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

Betty J. MAGEE, Appellant, v. STATE of Alaska, Appellee.

Betty J. MAGEE, Appellant, v. STATE of Alaska, Appellee. No. A-08184. Court of Appeals of Alaska. June 20, 2003. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

545

3332

Order In Magee v. State, Alaska App. Opinion No. 1876, 77 P.3d 732, 2003 WL 21230948 (May 23, 2003), we reversed Magee's conviction because we concluded that the anticipatory warrant authorizing the search of Ma-gee's residence was unlawful. Specifically, we held that the contingency that triggered the officers' authority to conduct the search was not defined in the warrant with sufficient clarity and precision to meet constitutional requirements. Id., slip opinion at pages 9-12, 736-737. The State has now petitioned us for rehearing, asserting that this issue was not properly before this Court. The State notes that Magee's appeal arose from a Cooksey plea; that is, Magee pleaded no contest to the eriminal charge while reserving her right to assert that the search warrant was issued improperly. The State asserts that, although Magee preserved some attacks on the search warrant when she en tered her Cooskey plea, she did not preserve the claim that the contingency described in the warrant was unlawfully imprecise. The State further asserts that, because this exact claim was not preserved, "this issue . was not briefed by the parties . on appeal". Finally, the State complains that, because this issue was not briefed on appeal, the State lost the opportunity to argue that, even if the warrant was invalid, the evidence obtained pursuant to that warrant might yet be admissible under the theories of good faith or inevitable discovery. When an appeal comes to this Court pursuant to a Cooksey plea, we normally do not engage in a sua sponte examination of the trial court proceedings to see if the issues raised on appeal comport with the issues preserved when the plea was entered. We trust that, if the defendant deviates from those preserved issues, the State will tell us. In Magee's case, the State did not complain (until now) that Magee was attempting to argue an issue that was not preserved. More importantly, and contrary to the State's assertion in its petition for rehearing, the State did brief the issue of whether the contingency described in the warrant was sufficiently definite to pass constitutional muster. Pages 15 through 17 of the State's brief are devoted to the issue of whether the contingency described in the warrant was sufficiently specific and objectively identifiable. The State did not argue that Magee was attempting to inject an unpreserved issue into the appeal; rather, the State acknowledged the issue and briefed the merits of this issue. Moreover, because the State acknowledged this issue and briefed it, we do not agree that the State had no fair opportunity to argue in the alternative that, even if the contingency was invalid, the evidence obtained pursuant to the warrant might still be admissible under the doctrines of good faith or inevitable discovery. Because the State recognized and briefed the issue of whether the contingency was valid, the State was on notice that it might lose this issue and that, if there were alternative arguments to be made, it was time to make them. For these reasons, the State's petition for rehearing is DENIED. Entered at the direction of the Court.

10579867

Thomas JONES, Appellant, v. FULLER-GARVEY CORPORATION, Appellee

Jones v. Fuller-Garvey Corp.

1963-11-19

No. 344

838

841

386 P.2d 838

386

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:06.657575+00:00

CAP

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

Thomas JONES, Appellant, v. FULLER-GARVEY CORPORATION, Appellee.

Thomas JONES, Appellant, v. FULLER-GARVEY CORPORATION, Appellee. No. 344. Supreme Court of Alaska. Nov. 19, 1963. Edward A. Merdes of McNealy, Merdes & Camarot, Fairbanks, for appellant. Warren A. Taylor of Taylor & Buller-well, Fairbanks, for appellee. Before NESBETT, C. J„ and DIMOND and AREND, JJ.

1284

7581

AREND, Justice. This appeal comes to us upon an agreed statement in which the parties stipulate that the point to be relied upon by the appellant is this: "Did the Lower Court error [sic], under the facts of this case, in holding that the December 3, 1960 fire and consequent destruction of the building on the leased premises, brought the landlord-tenant relationship between the parties to an end and thereby discharged Fuller-Garvey [the tenant-appellee] from its obligation to pay $400.00 per month rent from December 1, 1960 through September 30, 1965 inclusive [the period stated representing the unexpired term under the lease] ?" The facts of the case are also set forth in the agreed statement. Those which we consider pertinent to the issue raised are as follows: By written lease the appellee corporation rented a nightclub from the appellant for a ten-year term commencing October 1, 1955. On November 5, 1960, the appellee, without legal justification, abandoned the premises. His rent.at the time of the abandonment was paid through November, 1960. On December 3, 1960, the nightclub burned to the ground, apparently while unoccupied. The appellee let it be known that it would not move back onto the premises even if the nightclub were rebuilt. As for the appellant, he did not offer or intend to rebuild the nightclub. The appellant claimed that the appellee, in abandoning the nightclub, caused damage thereto in the sum of $6,850 by removing equipment and fixtures, which belonged to the appellant, and by leaving the building open so that all the plumbing froze. In addition to the damages mentioned, the appellant also sought to recover rent at the rate of $400 per month for the entire unexpired term. The trial court gave judgment for damages in the amount claimed but allowed nothing by way of rent. The record contains a copy of the lease agreement which we have examined. We find therein no acceleration clause for payment of rent in the event of some breach of the agreement by the lessee. Nor does the lease contain any provision regarding the rights and obligations of the parties in case the demised building should be destroyed by a chance fire rendering it unfit for tenancy. The lease does state that it is entered into for the purpose of conducting a nightclub. It also provides that the "lessee will use due care against fire hazards" and that, if the lessee defaults in the payment of rent or fails to perform any of the conditions and covenants of the lease, the lessor may evict the lessee, declare the lease forfeited and retain all moneys paid as rent and liquidated damages. The general rule at common law is that a tenant remains under the obligation to pay rent to become due in the future, notwithstanding the destruction of the leased premises, so long as any part thereof remains in existence capable of being occu pied or enjoyed by him. However, by the terms of the lease its purpose was for the conducting of a nightclub; and this fact places the instant case in the well recognized exception to the general rule that when the purpose of the lease is totally frustrated by a supervening event of which the lease says nothing, the lease shall be dissolved and the parties shall be excused from their obligations thereunder. Appellant's counsel contends that the exception should not be applied in this case for the reason that the tenant, the ap-pellee, had tortiously abandoned the premises and was wrongfully out of possession when the fire occurred. We cannot subscribe to such reasoning if the appellant implies or infers by it that the fire would not have occurred but for the wrongful conduct of the appellee in abandoning the building. There is no factual basis in the stipulated record of this case to support such an inference. Neither can we subscribe to such reasoning if the appellant means thereby that the cause of action as to the future rental payments and the damages thereon became fixed on the date of the abandonment. This would in effect be asking this court to apply the doctrine of anticipatory breach to the lease contract. If we were to consider the appellee's abandonment as an anticipatory breach of the lease contract, the appellant still could not recover damages for that future period after the fire, for evidence became available after the cause of action arose, but prior to judgment thereon, of the supervening impossibility which constituted a complete failure of consideration for all rent due in the future. The loss should rest where chance has placed it. The fire destroyed any cause of action as to anticipatory breach that the appellant had. Supplementary to his principal argument, the appellant contends that he was entitled to recover in this action the entire rent for the unexpired term, due and to become due, because the appellee abandoned the premises without notifying him that it would not abide by the rent contract. The agreed statement is silent regarding any failure on the part of the appellee to give notice of its abandonment of the leased premises, and, therefore, we need not consider the point. Apart from the appellant's appeal in this case, the appellee, as a concluding matter in its brief, asks us to relieve it from its inadvertent concurrence in the agreed statement that "regardless of the outcome each side is to bear their own costs and attorneys fees." The appellee asserts that for this court to give effect to such a stipulation is to permit parties to usurp the power of the court to allow costs and attorney's fees. We disagree. The legislature has declared in AS 09.60.-010 that, except as otherwise provided by statute, the supreme court shall determine by rule or order what costs, if any, including attorney's fees, shall be allowed the prevailing party in any case. Supreme Ct. R. 37 provides that this court shall allow costs and attorney's fees to the party which prevails on appeal, "unless otherwise ordered by the court." The appellant has directed us to no statute or court decision to the effect that the parties to an action may not by stipulation waive their respective rights to costs and attorney's fees. The decisions on the subject which we have found by our own research give full force and effect to such stipulations. We shall do likewise in this case and disallow costs or attorney's fees on appeal to either party. Judgment affirmed. . Wood v. Bartolino, 48 N.M. 175, 146 P. 2d 883, 888 (1944); Eggen v. Wetterborg, 193 Or. 145, 237 P.2d 970, 974 (1951); Anderson v. Ferguson, 17 Wash. 2d 262, 135 P.2d 302, 307-308 (1943); see 3 Tiffany, Real Property § 905 (1939). . Eggen v. Wetterborg, supra note 1. See 6 Corbin, Contracts § 1356 (1962). . Fratelli Pantanella, S.A. v. International Commercial Corp., 89 N.Y.S.2d 736, 739— 740 (Sup.Ct.1949). See 6 Williston, Contracts § 1967A, 1759 (rev. ed. 1938); Restatement, Contracts § 457, comment d (1932). . Weyerhaeuser Timber Co. v. First Nat'l Bank, 150 Or. 172, 38 P.2d 48, 58, 43 P. 2d 1078 (1934); Costello v. Polenska, 242 Wis. 204, 7 N.W.2d 593, 8 N.W.2d 307 (1943). See also Coggeshall v. Hartshorn, 154 U.S. 533, 14 S.Ct. 1198, 15 L.Ed. 261 (1855); Bond v. Davenport, 123 U.S. 619, 8 S.Ct. 306, 31 L.Ed. 279 (1887); Schaller v. Moore, 254 App.Div. 553, 3 N.Y.S.2d 325 (1938).

10578873

MATANUSKA ELECTRIC ASSOCIATION, INC., Appellant, v. Walter JOHNSON, Appellee

Matanuska Electric Ass'n v. Johnson

1963-11-19

No. 278

698

704

386 P.2d 698

386

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T21:16:06.657575+00:00

CAP

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

MATANUSKA ELECTRIC ASSOCIATION, INC., Appellant, v. Walter JOHNSON, Appellee.

MATANUSKA ELECTRIC ASSOCIATION, INC., Appellant, v. Walter JOHNSON, Appellee. No. 278. Supreme Court of Alaska. Nov. 19, 1963. John C. Hughes, Hughes, Thorsness & Lowe, Anchorage, for appellant. W. C. Arnold, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and AREND, JJ.

3718

22805

NESBETT, Chief Justice. The question before us is whether the employer of an independent contractor may be held liable to the contractor's injured employee for negligence in failing to select a competent contractor where the contractor has failed to provide workmen's compensation insurance as required by law and is financially unable to respond in damages' for injuries sustained by its workmen. Appellant Matanuska Electric Association, hereinafter referred to as MEA, awarded a right of way bulldozing clearance contract in the sum of $837.90 to John Joslin who was low bidder. Joslin commenced performance of the contract without an employee, but after losing a track on the dozer he hired the appellee Johnson to assist in remounting the track and thereafter in marking the right of way and picking up roots. While engaged in this employment Johnson was badly injured by a falling tree which had been dislodged by the dozer. At the time he contracted with MEA Joslin thought that he was covered by a policy of workmen's compensation insurance, but learned after the accident that he carried only public liability insurance.; MEA's contract with Joslin required that . he carry workmen's compensation and liability insurance. On small individual j clearing. contracts the contractor was not' required by MEA to show evidence of workmen's compensation coverage. Instead, according to its manager, MEA relied on its own insurance to cover the contractor and his employees. The suit by appellee against MEA and Joslin was tried before the court without a jury and resulted in a judgment against the defendants jointly and severally in the sum of $12,920, which was' approximately the amount of benefits appellee would have received had Joslin actually been covered by workmen's compensation insurance. The trial court found that Joslin was a civil engineer who had been engaged in heavy construction and road work since 1940; that he had operated bulldozers at various times since 1943; that he had bid on five different small jobs offered by MEA and had been successful bidder on two occasions. It found that under the proven facts Joslin was an independent contractor; that MEA had a duty to exercise reasonable care to select an independent contractor who would be responsible for injuries to his employees and others arising out of the performance of the work and that MEA had breached this duty. The court made no finding that Joslin's education, skill and experience were inadequate for the type contract awarded him. No finding was made that Joslin was personally reckless or irresponsible, although he was found to have been negligent in causing appellee's injuries. The general rule is that the employer of an independent contractor is not responsible for the negligence of the contractor. This rule is said to be based on the fact that the employer of an independent contractor has no control over the prosecution of the work and that it would be unjust to hold him liable for the torts of another whom he cannot diredC It has also been said to be based on the presumption that a contractor will discharge his legal duties owing to employees and third persons. An exception to the rule is applied where the work to be performed by the contractor is by its nature such that others may be injured unless it is skillfully and carefully-^, done. Where the courts have found the work to be of that nature they have held that the employer has the duty to exercise reasonable care to select a contractor with reasonable skill and competence in the type of work to be performed. The degree of care which must be exercised in selecting an independent contractor has been defined as ordinary care to employ one reasonably competent with ordinary skill in doing the kind of work for which employed, and as that care which a reasonable man would exercise under the circumstances of each in dividual case. Failure to exercise such care in selection will make the employer liable for the contractor's acts or omissions. A study of the authorities illustrating this exception does not provide the reader with any definite concept of its application. The particular facts of each case must govern. In Joslin v. Idaho Times Pub. Co. the court took judicial notice of the fact that the delivery of newspapers by the use of motorcycles required skill, experience and judgment and was hazardous enough to require that an employer of such deliverymen exercise care in selecting fit and safe operators. On the other hand, in Moore v. Roberts it was held that the employer of a contractor to haul lumber by motor truck had the right, in the absence of any notice to the contrary, to assume that the contractor was not conducting his business in violation of the law. The contractor had no permit from the Railroad Commission and his driver had no chauffeur's license or permit from the Railroad Commission. Nevertheless, the evidence was held to be insufficient to create the issue that the employer was negligent in the selection of the contractor. In Kendall v. Johnson the court stated that the work of blasting may or may not fall within the exception to the general rule depending upon the circumstances. Since the contractor was employed to construct a railroad grade in the Cascade Mountains far removed from any human habitation the general rule of non-liability was held to apply. In Berg v. Parsons however, the contractor blasted to excavate city lots. The only investigation of the contractor's competence to do the work consisted of an inquiry of a law clerk in a lawyer's office who advised that he had seen a piece of blasting done by the contractor which was reasonably well performed. The court held that the employer had not performed his duty to employ a competent contractor. In Tansey v. Robinson it was revealed that a grocery delivery contractor had twenty-nine previous traffic convictions, had lost his license and had no permit from the Illinois Commerce Commission to carry property for hire. The only inquiry made by the employer was of the contractor's predecessor who advised that the contractor was reliable and recommended him. The contractor had produced a policy of insurance. The court held that an issue as to whether the employer had used reasonable care in the selection was raised and summary judgment should not have been granted. The competency of a contractor is generally determined by the skill and experience that he has to do the particular work. In Joslin v. Idaho Times Pub. Co. the court stressed the skill, experience and judgment required to safely operate motor vehicles. In Tansey v. Robinson the past record of traffic convictions of a contract grocery deliveryman and his loss of his driver's license and failure to have a state permit were considered to be factors reflecting on his competency. The question of whether the contractor employed was in fact competent seems to arise only after suit on a claim of negligence. The question before the court then becomes two-pronged. The first ques-tion is whether the contractor was in fact negligent in the respect claimed. If so, then the second question may be whether the employer, after reasonable inquiry, knew or should have known that the contractor was unsuited for the work before employing him. A single act of negligence on the part of the contractor does not necessarily establish incompetence. On the other hand, if the negligence resulted from a lack of skill or experience in performing the particular type of work, inadequacy of equipment, or from recklessness or other personal characteristics of the contractor, then the question may be whether the employer, after making such investigation of the contractor's competency as a reasonable person would have made under the same circumstances, learned or should have learned of the contractor's lack of skill, inadequate equipment, or of existing personal characteristics such as recklessness or lack of judgment. In the case before us Joslin was awarded a contract to clear a power line right of way forty feet wide and six miles long. The work required the use of a tractor bulldozer and as near as we can determine from the record was to be performed away from! populated areas. The small amount of the-contract price would indicate that few, if any employees were to be used. One official of MEA testified that the qualifications for obtaining the contract were that the bidder own a bulldozer and operate it himself. Joslin was asked by MEA to produce evidence of public liability insurance but not of workmen's compensation. Joslin testified that it was not his intention to employ anyone to assist him and that he did not employ Johnson until the second or third day of work when it became necessary to have assistance in remounting a track of the tractor. The clearance of forested land by bulldozing, even though to be performed away from populated areas is work which could result in injury to others unless skillfully and carefully done. The moving of heavy equipment to and from the site, the felling and shoving of trees and other objects require skill and experience and unless done with care can result in injury to others. We believe that Joslin's background of education and experience, plus his record of having twice previously performed contracts for MEA, negatives any claim that he was not technically competent to perform the work he contracted to do. As we have mentioned, the trial court made no finding concerning Joslin's technical competency. Its finding of a breach of duty by MEA appears to have been based entirely on the fact that Joslin was not financially able to respond in damages for injuries to-his employees and that he did not carry insurance for that purpose. In view of the authorities cited by the trial court we conclude that it held in effect that financial responsibility is an indispensable attribute of a competent contractor. We find ourselves unable to agree with the learned trial judge. Almost all of the authorities examined by us concerning the duty of the employer to select a competent contractor arose out of circumstances where a third person, rather than an employee of the contractor, was injured. In the case before us it was the •employee of the independent contractor who ¡was injured by the contractor's negligence. There is a difference between the situation where an innocent passer-by or an adjoining property owner is injured or damaged by the independent contractor's negligence and the case of injury to the contractor's employee. Legislatures long ago acted to provide compensation for injured employees by enacting workmen's compensation acts which covered the employee regardless of negligence. The first such act was passed in Alaska in 1915. The act presently in force provides that any employer of one or more persons shall be liable for the payment of compensation to injured workmen as provided in the act and that negligence shall not be a defense to a proceeding to enforce payment. The act further provides that failure on the part of the employer to carry workmen's compensation insurance or provide self insurance as provided for in the act shall carry civil as well as criminal penalties. The basic question that must be decided in the case before us is whether the employer of an independent contractor has a legal right to assume that his contractor will abide by the law and provide for compensation where an employee is used or whether he must himself take affirmative steps to determine that the contractor is financially responsible and has complied with the workmen's compensation act. Appellee contends that MEA was negligent in not requiring that Joslin produce for inspection an effective workmen's compensation insurance policy before awarding him the contract. It appears that MEA had insurance coverage that will pay Johnson's judgment should this court hold that MEA selected a contractor who was incompetent because financially irresponsible. Johnson's injuries were serious, his medical expenses high and we are not unaware of his family responsibilities. His judgment against Joslin apparently is uncollecti-ble and his only hope of obtaining compensation for the injuries suffered lies in sustaining his judgment against MEA. In_ spite of these human circumstances we do not feel justified in extending the scope of the rule. The liability that such a rule would impose on all employers of independent contractors would be likely to create more hardships than it would alleviate. A new law or rule would not necessarily eliminate hardship cases. We must bear in mind that Joslin was required by law to provide for the compensation of injured employees but negligently failed to comply even though failure subjected him to civil and criminal penalties. If the rule were extended to include financial responsibility no contractor could be employed with safety without insurance or a contractor's surety bond to cover the employer's potential liability in the event the contractor failed to abide by the law and provide for employee compensation, or if, after procuring insurance, the contractor permitted it to lapse, be cancelled, or lost coverage for any other reason. True, the present rule only requires that the employer exercise reasonable care to select a competent contractor. But whether reasonable care was exercised depends upon the facts of each particular case. The facts surrounding the contractor's employment and competency are always judged in hindsight after a serious injury, where the usual sources of compensation are not available and personal hardship must result. There is little enough certainty in the rule as it presently reads. If financial responsibility were added as a factor, the taking out of insurance would be the only safe course for a prudent informed employer to pursue. Employers of independent contractors are scattered throughout our social and economic spectrum. Probably the majority are salaried workmen and wage earners of modest means who are inexperienced and uninformed in matters of vicarious liability. Increasingly the type of work required of contractors is of such a nature as to require skill and experience in its performance to avoid injury to others. No end- of justice would appear to be served by a rule which in its largest application, would have the effect of transferring the hardship of injured workmen to persons of modest means and business experience who were only remotely connected with the fault or negligence that caused the injury and who had no control over the performance of the work by the independent contractor. Under those circumstances the crushing impact of a personal injury judgment would appear to be merely compounding a hardship that should have been avoided by compliance with the workmen's compensation act. Some such rule may eventually be considered a social necessity in order to assure that all injured persons are adequately compensated. If so, it should be established by the legislature after careful study of the social and economic impact it might have. The question of whether the employer's liability should be made to depend upon whether or not the contractor was negligent should perhaps be considered at the same time. At present the contractor is liable for the payment of compensation to his employee regardless of whether he or the employee was negligent. If the ultimate object is to guarantee compensation and minimize human hardship then it may seem advisable for the legislature to permit recovery from the employer regardless of negligence. The concept that all employers should be able to'judge the skill, experience, knowledge, adequacy of equipment, and, as now suggested by appellee, the financial responsibility possessed by independent contractors, is based on unreality to a great extent. Where the work to be performed by the contractor is not of a type likely to result in injury to others, no particular care in selection of the contractor is required. As the likelihood of injury to others increases because of the nature of the work, the degree of care which must be exercised in the selection of the contractor increases. Some experienced employers of contractors have the ability to weigh the technical factors of skill, experience and adequacy of the equipment possessed by contractors under consideration. Probably most do not. The average employer hiring a contractor to construct, repair, move or demolish a residence, for example, will not be qualified to judge of his skill, experience or the adequacy of his equipment. The fact that he usually operates in the area under a license and business name and holds himself out as being able to perform the particular work to be done is all the average employer has as a guide to competency. Ordinarily the employer will not be competent to weigh the conflicting opinions on competency that might be obtained by consulting experts. Under the rule, however, the potential liability of the employer increases as his ability to determine the competency of the contractor to perform technical and dangerous projects decreases. This disparity is emphasized where it is the contractor's employee who seeks to hold the employer liable for employing an incompetent contractor. It would seem that the average contractor's employee would be at least as capable, if not more capable, than the average employer, of determining whether the contractor for whom he works has the necessary skill, experience and ade-quate equipment to perform the work. For this court to add financial responsibility as a factor in determining competency would only compound the uncertainty of application of an already vague and uncertain rule and would accomplish no useful purpose. Before the courts should be asked to tend liability to the employer of the independent contractor for injuries to the contractor's employees, where none is imposed by statute, it would seem advisable for the responsible state agencies to make a serious attempt to enforce the legal sanctions presently provided against the contractor who fails to abide by the law and provide compensation for injured employees. In view of the foregoing we hold that MEA had a right to assume that Joslin would abide by the law and the terms of his contract and provide compensation for his employee in the event he decided to use one. MEA did not have the affirmative duty of requiring that Joslin produce for inspection an effective policy of workmen's compensation insurance which would be applicable in the event he employed others. Joslin was not an incompetent contractor. The judgment below is reversed insofar as it pertains to the appellant MEA. . See, Morris, Torts of Independent Contractors, 29 Ill.L.Rev. 339, 343 (1934). . Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 494, 500 (1929); See Annot. 8 A.L.E.2d 267, 273 (1949); Restatement, Torts see. 409 (1934). .Baker v. Scott County Mailing Co., 323 Mo. 1089, 20 S.W.2d 494, 500 (1929). . Tansey v. Robinson, 24 Ill.App.2d 227, 164 N.E.2d 272, 276-277 (1960); whore Illinois adopts the definition provided by the Restatement, Torts sec. 411, comment c. . Other exceptions with which we are not concerned in this case are: (1) where the work to be performed is inherently dangerous and likely to cause injury to others unless special precautions are taken; See, Janice v. State, 201 Misc. 915, 107 N.Y.S .2d 674 (Ct.Cl.1951) where the work involved demolishing a concrete block budding in a populated area, See Restatement, Torts secs. 413, 427 (1934); (2) where the work is ultra-hazardous and near absolute liability is imposed on the employer, See, Restatement, Torts secs. 423, 519, 522 (1934) ; Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119, 127 (1952). I Research has failed to disclose cases I which clearly recognize a distinction be-I tween "ultrahazardous" and "inherently j dangerous" situations. In fact, these I terms are frequently equated, e. g. Community Gas Co. v. Williams, supra 73 S.E.2d at 127; where the court appears-to have relied upon sections of the Restatement, Torts involving both "ultra-hazardous" and "inherently dangerous" activities. Admittedly the distinction is-gray. Compare, Restatement, Torts sec. 427, comment (a) with Restatement, Torts sec. 520, comment (a). A close-reading of these sections reveals that when the term "ultrahazardous" is used, the test to determine whether negligence-is in question, is whether "utility" outweighs the "gravity of the risk". Under the definition of "inherently dangerous" more emphasis appears to be placed on the violent nature of the work, such as. dynamiting. . 60 Idaho 235, 91 P.2d 386, 388 (1939). . 93 S.W.2d 236, 239 (Tex.Civ.App.1936). . 51 Wash. 477, 99 P. 310, 315 (1909). . 84 Hun 60, 31 N.Y.S. 1091 (Sup.Ct. 1895). . 24 Ill.App.2d 227, 164 N.E.2d 272 (1960). . 60 Idaho 233, 91 P.2d 386, 388 (1939). . 24 Ill.App.2d 227, 164 N.E.2d 272, 276 (1960). . Moore v. Roberts, 93 S.W.2d 236, 239 (Tex.Civ.App.1936). . Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 494, 600 (1929) which is relied upon by appellee may be an exception. The force of this case as a persuasive authority as to financial responsibility is diminished by the number and variety of issues submitted to the jury. Also because its facts arose prior to the adoption of a workmen's compensation act by Missouri in 1927, see Laws of Mo.1927, pp. 490-522. . SLA 1915 ch. 71, applicable only to the mining industry, but expanded into a general act in 1923. SLA 1923, ch. 98. . AS 23.30.045; AS 23.30.050; AS 23.30.-055; AS 23.30.265. . AS 23.30.085; AS 23.30.070(f); AS 23.30.255(a). . The concept that an independent contractor is not competent unless financially able to respond in damages to tort claims was discussed but not applied in ' Majestic Realty Associates Inc. v. Toti Contracting Co., 30 N.J. 425, 153 A.2d 321, 324 (1959). See, Morris, Torts of Independent Contractors, 29 Ill.L.Rev. 339 (1934); Steffen, Independent Contractor and the Good Life, 2 U.Chi.L. Rev. 501 (1935); 2 Harper and James, Torts, sec. 26.11, p. 1405 (1956); Prosser, Laws of Torts, sec. 64, pp. 357-358 (2d ed. 1955). . AS 23.30.085; AS 23.30.070(f); AS 23.30.255(a). . Por example, the employment of bulldozer contractors for land clearance by the individual home owner and homesteader in Alaska is so frequent as to be commonplace — likewise the employment of house movers, well diggers and airplane bush pilots.

9096594

ALYESKA PIPELINE SERVICE COMPANY, Appellant, v. Mabel V. DeSHONG and the Alaska Workers' Compensation Board, Appellees

Alyeska Pipeline Service Co. v. DeShong

2003-10-03

No. S-10083

1227

1245

77 P.3d 1227

77

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:36:35.701622+00:00

CAP

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

ALYESKA PIPELINE SERVICE COMPANY, Appellant, v. Mabel V. DeSHONG and the Alaska Workers' Compensation Board, Appellees.

ALYESKA PIPELINE SERVICE COMPANY, Appellant, v. Mabel V. DeSHONG and the Alaska Workers' Compensation Board, Appellees. No. S-10083. Supreme Court of Alaska. Oct. 3, 2003. Michael A. Budzinski, Russell, Tesche, Wagg, Cooper & Gabbert, Anchorage, for Appellant. Mabel V. DeShong, pro se, Fairbanks. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

10768

70710

OPINION CARPENETI, Justice. I. INTRODUCTION A worker filed a claim for worker's compensation after injuring her elbow while working for her employer. Therapy did little to alleviate her condition, yet she did not undergo surgery until two years later after changing doctors. Before undergoing that surgery, the worker was laid off by the employer. She applied for total temporary disability benefits from the time of her lay-off to the date of her ultimately successful surgery. She overeame a presumption of medical stability and was awarded benefits even though she received unemployment benefits for part of the claimed period. Because the Workers' Compensation Board did not err in finding that the worker overcame the presumption of medical stability, and because receipt of unemployment benefits does not absolutely bar temporary total disability benefits if the unemployment benefits are paid back, we affirm the decision of the superior court that affirmed the decision of the board. IIL FACTS AND PROCEEDINGS A. Facts Mabel "Tiny" DeShong was an administrative assistant for Alyeska Pipeline Services Company (Alyeska) when she filed a report of occupational injury or illness with the Alaska Workers' Compensation Board (board) on January 11, 1998. She alleged that her job-related use of a computer mouse resulted in right elbow joint pain. DeShong's first doctor, Robert D. Dinge-man, M.D., diagnosed her as having activity-related right dominant elbow medial condyli-tis on January 13, 1998. Dr. Dingeman fitted her for a splint, arranged for physical therapy, and discussed the possibilities of cortisone injections and surgery. Alyeska arranged for an ergonomic workstation evaluation, and then implemented the recommendations of the evaluation, modifying DeShong's work environment in an effort to alleviate her symptoms. Following several rounds of therapy and use of the improved workspace, DeShong was doing considerably better at her April 1998 appointment with Dr. Dingeman. At that time, she told him that she did not want cortisone injections. In June 1998 Dr. Dingeman stated that she ought to consider having surgery in the future. He placed DeShong's arm in a cast for two weeks. Because of her objections to surgery, Dr. Dingeman stated in August 1998 that she was not a surgical candidate, but he recommended that she obtain a second opinion by an orthopedist within two weeks. In September 1998 Dr. Dingeman again recommended that DeShong be evaluated by one of the two hand surgeons in Anchorage, though she was "rather determinedly a nonsurgical candidate as yet." In the same September 1998 report, Dr. Dingeman said, "I would state again for the record my recommendation that she be evaluated further by one of the two hand surgeons in Anchorage soon." In October 1998 Alyeska requested that DeShong be evaluated by Dr. Michael Gev-aert pursuant to an employer-sponsored independent medical evaluation (EIME). Dr. Gevaert diagnosed her as having chronic medial epicondylitis. He found that twelve weeks of physical therapy had failed to produce favorable results and noted that she did not want to consider steroid injections. Dr. Geveart, therefore, found that she had reached medical stability and recommended a functional capacity evaluation to determine her permanent work restrictions. DeShong returned to Dr. Dingeman in November 1998 because she continued to experience pain and discomfort in her arm. Dr. Dingeman found her lack of improvement over so many months to be of concern. He speculated as to surgical exploration but ree-ommended that such consideration "be deferred until after any disposition process occurs." In December 1998 DeShong was laid off by Alyeska. During her visit on January 19, 1999, Dr. Dingeman noted that she had "reached 'statutory stability' [but had] not reached clinical stability in the natural course and progression of her condition." Such progression, Dr. Dingeman stated, could last up to eighteen months. DeShong asked whether she should obtain an additional opinion, and he endorsed that idea for "disposition purposes." DeShong was again seen by Alyeska's doe-tor, Dr. Gevaert, in April 1999. Dr. Gevaert, finding no significant functional change since October 26, 1998, said that she remained medically stable. As DeShong had undergone a physical capacity evaluation that concluded that she could perform her usual and customary job, Dr. Gevaert found there to be no permanent work restrictions. The question whether DeShong was entitled to a second opinion took on great importance. While she was being treated, DeSh-ong expressed her desire to both Alyeska and Dr. Dingeman that she obtain a second opinion from a doctor of her choice. She did not obtain a second opinion until August 1999, after Dr. Dingeman had found her to be medically stable. There was substantial confusion on the part of DeShong and Dr. Dingeman over whether or not DeShong was entitled to a second opinion. In July 1999 DeShong filed a claim with the board alleging that Alyeska had denied her request for authorization to visit another doctor for a second opinion. DeShong alleged that she was told by Alyes-ka that the company had already paid for a second opinion, that of Dr. Gevaert. DeSh-ong also asserted that she was told by Alyes-ka's representative that she would still be able to have a second opinion by a doctor of her own choice if she saw Dr. Gevaert. Alyeska replied by asserting several affirmative defenses, including that Dr. Dingeman was DeShong's treating physician and that he had not referred her for a second medical opinion. Dr. Dingeman, however, thought that it was Alyeska's responsibility to arrange a second opinion. Dr. Dingeman noted in July 1999 that [slomehow the patient has the impression that the previously recommended second opinions and consultations can be facilitated through this office. It was shared back that typically the carrier must make those arrangements with the doctors who consider and accept such cases. Usually the adjuster/rehabilitation specialist obtains the physician and provides them with a list of clinical and administrative questions to be addressed, and that there are cireum-stances making availability of physicians for these types of evaluations available is known to both the adjusters and the board. The circumstances by which these challenges arose in the last year are not within the power of this individual office to alter or facilitate. Although Dr. Dingeman had requested that DeShong be evaluated by a specialist on several occasions, he told DeShong that such arrangements needed to be made through Alyeska. This is incorrect. By law, Dr. Dingeman could have referred DeShong to another doctor for further evaluation. When DeShong requested permission from Alyeska to obtain a second opinion as Dr. Dingeman advised her to do, Alyeska denied the request. When DeShong was made aware that she could change physicians at the prehearing conference before the board, she did so. DeShong saw Dr. Carl Unsicker, who diagnosed her as having medial epicondylitis and possible ulnar entrapment. He recommended a nerve conduction study and a reevaluation for surgery. Dr. Jeremy Becker reviewed the results of the nerve conduction study and concluded that DeShong suffered from mild median neuropathy in the right wrist with significant ulnar neuropa-thy in the right elbow. Upon receiving Dr. Becker's recommendation of surgery, DeSh-ong consented and surgery was successfully performed on September 15, 1999. Until DeShong's surgery, Dr. Dingeman allowed her to continue working in a light duty capacity. Alyeska had been accommodating DeShong's work restrictions until she was laid off on December 27, 1998. After being laid off, DeShong sought and received unemployment benefits until her surgery, at which time Alyeska began paying Temporary Total Disability (TTD) benefits for the period of surgery and recovery. B. Proceedings In July 1999 DeShong filed a claim for TTD benefits from the time of her layoff in December 1998 through that date. DeShong testified at the March 2000 board hearing that she wanted to repay her unemployment benefits and instead receive TTD benefits from the time of her layoff to the date of her surgery. The board considered whether DeShong was entitled to TTD benefits for the time between her layoff and surgical treatment. Alyeska contended before the board that DeShong was ineligible for benefits as she had reached medical stability during the claimed benefits period. The board found that although Dr. Dingeman considered DeShong to be medically stable, there was no dispute that she had improved after surgery. Because Dr. Dingeman had consistently recommended a second evaluation throughout his treatment and because DeShong improved after surgery, the board found that DeShong had produced clear and convincing evidence of no medical stability. The board accordingly found that DeShong was entitled to TTD benefits through the period of disability. Alyeska also argued that DeShong remained legally ineligible for TTD benefits because she had collected unemployment benefits while she was laid off. The board found that DeShong had clearly disclosed her worker's compensation work limitations on her unemployment application. Since she was unable to find work that fit her restrictions, the board found that her injury precluded her from finding a job in the real market. Provided she pay back the unemployment benefits she received from December 29, 1998 to September 15, 1999, the board found she was eligible for TTD benefits during that time. Alyeska appealed this decision to the superior court. Superior Court Judge Fred Tor-risi found that Dr. Dingeman did not understand that DeShong had a legal right to a second opinion, nor did DeShong. Given DeShong's ambivalence towards surgery and Dr. Dingeman's finding that she had not reached "clinical stability," the court found that "a reasonable mind could accept that DeShong had not during these months reached statutory stability, and that her surgery was delayed due to her ignorance of her right to a timely referral [for a second opinion]." The court therefore upheld the board's decision to award TTD benefits. The superior court next considered whether payment of unemployment benefits constituted an absolute bar to DeShong's receipt of TTD benefits. It found that interpretation of the unemployment statute was within the board's expertise and that the board's interpretation was reasonable, and it concluded that the statute does not present an absolute bar to receipt of TTD benefits. The court therefore affirmed the decision of the board to allow DeShong to receive TTD benefits provided she return her unemployment benefits. Alyeska appeals. III. STANDARD OF REVIEW When the superior court acts as an intermediate court of appeal in an administrative matter, we independently review and directly scrutinize the merits of the board's decision. Factual findings made by the board are reviewed under the "substantial evidence" standard. Factual findings will be upheld so long as there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In questions of law involving the agency's expertise, a rational basis standard will be applied and we will defer to the agency's determination so long as it is reasonable. The rational basis standard is applied where the agency's expertise is involved or where the ageney has made a fundamental policy decision. We will substitute our own judgment for questions of law that do not involve agency expertise. In such cases we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION A. DeShong Produced Clear and Convincing Evidence that She Was Not Medically Stable During the Time in Dispute. The Alaska Workers' Compensation Act awards TTD benefits to those workers who have not reached medical stability pursuant to AS 28.80.185. Medical stability is reached at the date after which further objectively measurable improvement from the effects of the compensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objectively measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence. . [ ] Alyeska argues that no physician expected that DeShong would experience objectively measurable improvement in her condition during the time in dispute, and hence she had reached medical stability. Although Dr. Dingeman originally indicated that surgery was a possibility, Alyeska asserts that subsequent indications prevented him from recommending surgery around August 1998, four months before the benefit period in dispute. The board found that Dr. Dingeman considered DeShong's condition to be medically stable under AS 28.30.395(21). DeShong was therefore required to show clear and convine-ing evidence that she was not medically stable. But the board also found that Dr. Dingeman recommended evaluation by a specialist and that DeShong was reluctant to undergo surgery until she received Dr. Becker's recommendation. Because DeShong therefore had a legitimate reason for delay, and because the surgery was ultimately sue-cessful, the board concluded that clear and convincing evidence showed that DeShong was not medically stable before the surgery and therefore was entitled to TTD benefits. As noted above, Dr. Dingeman consistently suggested surgery as an option or recommended that DeShong obtain a second opinion. He suggested surgery for the first time in January 1998, and suggested a see-ond opinion for the first time in August of that year. Then, in four other reports dating from September 1998 to May 1999, Dr. Dingeman either mentioned surgery as an option or suggested that DeShong obtain a second opinion from an orthopedist. Under these cireumstances, there was substantial evidence to support the board's finding that she had produced clear and convincing evidence that she was not medically stable. B. The Board Did Not Assign to Alyes-ka the Responsibility of Managing DeShong's Medical Care. The Act allows an employee to designate his or her treating physician. An employee may change physicians once without the written consent of the employer. Referral to a specialist is not considered a change in physicians. An employer can require an employee to see a physician of the employer's choice as well, with this visit being separate from an employee's right to choose his or her physician. An employee can also be referred to a specialist or change physicians. Alyeska argues that the board incorrectly held Alyeska responsible for managing DeShong's medical care. Any delay in DeShong's referral to a second physician, Alyeska contends, is the result of Dr. Dinge-man's misreading of the workers' compensation statute. Therefore, Alyeska argues, it should not be held responsible for the delay in DeShong's surgery. But the board's decision does not hold Alyeska responsible for the delay in DeSh-ong's surgery; it merely noted that the combination of the employer's delay in providing an evaluation for the surgery and the final outcome of the surgery produced clear and convincing evidence of no medical stability. And Alyeska was aware of DeShong and Dr. Dingeman's confusion over DeShong's rights under the Act, because copies of Dr. Dinge-man's reports were sent to Alyeska. Alyes-ka, therefore, had notice of the confusion over whether or not DeShong was a surgical candidate; it was also aware of Dr. Dinge-man's desire for a second opinion by a specialist. The board's decision does not have the effect of making Alyeska responsible for managing DeShong's health care. But it does recognize DeShong's understandable confusion concerning the seope of her rights. And the superior court properly emphasized the traditional reluctance of courts to find that a worker has waived procedural rights to seek compensation unless the worker is clearly informed of those rights. As the superior court summarized the situation: In construing the applicable workers' compensation statutes, the Board must be guided by the admonition of the courts over the last 40 years that it has a duty to fully advise injured workers,. Alyeska agrees that Dr. Dingeman did not appear to understand the applicable law, and it is apparent that Ms. Deshong didn't either. All of the reports were copied to the Board contemporaneously. In October and November of 1998, Dr. Dingeman was still mentioning surgery, while also saying Ms. Deshong didn't want it, and in January of 1999 he said she had not reached "clinical stability." He specifically said "she asked about an additional opinion." In May they were still talking in the same vein, and in July Dr. Dingeman noted that there had been "no additional inquiries from the carrier." Under these cireumstances, based on the entire record, a reasonable mind could accept that Ms. Deshong had not during these months reached statutory stability, and that her surgery was delayed due to her ignorance of her right to a timely referral. Given DeShong's confusion and our unwillingness to find that a worker has waived procedural rights to seek compensation unless the worker is clearly informed of those rights, we agree with the superior court's resolution of this issue. C. The Board Did Not Err in Awarding TTD Benefits to DeShong for a Period of Time in Which She Was Receiving Unemployment Benefits on Condition that She Repay the Unemployment Benefits. Alaska Statute 28.80.187 provides: Compensation is not payable to an employee under AS 23.30.180 [compensation for permanent total disability] or 23.80.185 [compensation for temporary total disability] for a week in which the employee receives unemployment benefits. Alyeska argues that the board erred as a matter of law under this statute in awarding TTD benefits to DeShong for a period of time in which she had already received unemployment benefits. The board found that the entire record showed that DeShong clearly disclosed her light duty limitations in her application for unemployment. Because she was unable to find work under these restrictions, the board concluded that her injury precluded her from a job in the "real market." The board awarded her TTD benefits for the claimed period "provided she repays the [unemployment insurance] benefits received as required by [ ] AS 28.30.187." In upholding the board's decision, the superior court found the board's interpreta tion of AS 28.30.187 to be within the board's area of expertise and applied the deferential rational basis standard of review. But the statute does not involve any interpretation or question of law relating specifically to workers' compensation. Where the question presented does not involve agency expertise, the substitution of judgment standard is used. This "standard is appropriate where the knowledge and experience of the agency is of little guidance to the court or where the case concerns ' "statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge." ' Accordingly, we use our own judgment in reviewing the board's decision. We have not previously faced the issue now before us. We must interpret AS 23.30.187 to determine if it presents an absolute bar to receipt of TTD benefits by an injured worker who has already received unemployment benefits. In interpreting a statute, we consider its language, its purpose, and its legislative history, in an attempt to "give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others." As we have explained, "[in order to interpret a statute contrary to its plain meaning, ' "the plainer the language, the more convincing contrary legislative history must be." '" Alaska Statute 23.30.187 clearly precludes the contemporaneous receipt of temporary or permanent total disability benefits and unemployment benefits. Yet on its face, the statute says nothing about whether an employee who has received unemployment benefits for a week during which she was eligible for, but did not receive, workers' compensation benefits, may repay the former in order to qualify for the latter. Because of this inherent ambiguity, we turn to the purpose of the statute and its accompanying legislative history for indications of whether the legislature intended that such action be prohibited. The purpose of the workers' compensation system is to "compensate the victims of work-related injury for a part of their economic loss." Under this system, each employer is required to have workers' compensation insurance to cover its potential compensation costs, resulting in the employer and the consumers of its goods bearing much of the financial cost of the system. As we explained in Wright v. Action Vending Co., [tlhe ultimate social philosophy behind compensation liability is belief in the wisdom of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obligated to provide in any case in some less satisfactory form, and of allocating the burden of these payments to the most appropriate source of payment, the consumer of the product. Turning to the legislative history, there is no indication that the legislature sought to render ineligible for workers' compensation benefits an employee who has previously collected unemployment insurance. Instead, what it does reveal are concerns regarding double recovery, the receipt of workers' compensation benefits by employees who have already reached medical stability, and the disincentive to return to work created by overpayment to injured workers. At the beginning of the Twelfth Legislature's second session, Representative Terry Martin, Chair of the House Labor and Commerce Committee, circulated an open letter regarding House Bill 159 (H.B.159) to "(alll concerned about Alaska's Workers Compensation." In the letter, Representative Martin explained: Changes have taken place in our state which now result in a number of claimants drawing excessively large benefit amounts or drawing benefits when they should not be entitled to them at all. An effort should be made to seek alternatives that would eliminate oversized, unearned benefits while still protecting the vast majority of the workforce.[ ] Representative Martin recognized the possibility of overlap between workers' compensation and unemployment insurance benefits received by partially disabled workers who, while unable to perform their previous jobs, were still eligible to work, and proposed that they receive a dollar-for-dollar offset. This proposal was not adopted, leaving open the possibility that a partially disabled worker could simultaneously receive both unemployment and workers' compensation benefits. The concerns of Alaska's businesses were reflected in a report prepared by the Alaska Conference of Employers, Inc. (ACE) entitled "Recommended Changes to the Alaskan Workers' Compensation Act." One of the suggestions made in this report pertained to employees receiving or eligible to receive both unemployment and workers' compensation benefits. Concerned about overcompensating injured employees, ACE explained: The Workers' Compensation Act has been called upon throughout the years to compensate employees after they reach the date of maximum medical improvement and before that point in time when employment opportunities improve and jobs become available. The practice is based upon the theory that a compensable injury caused a loss of the job, and therefore the unemployment is the result of the industrial injury and workers' compensation is proper until a new job is available.[ ] Believing that the workers' compensation system should not bear the burden of supporting employees whose physical conditions are not expected to improve, ACE proposed that the primary benefit in such situations be unemployment insurance, and that workers' compensation, if available at all, should be used only as a supplement. ACE's version of the statute provided in relevant part: (a) No compensation shall be payable for temporary total disability or permament total disability under this chapter for any week in which the injured employee has received, or is receiving, or is eligible for unemployment compensation benefits. (b) If an employee is entitled to both compensation for wage-loss pursuant to AS 28.80.190(b) and unemployment compensation benefits, such unemployment compensation benefits shall be primary and the compensation for wage-loss shall be supplemental only, the sum of the two benefits not to exceed the amount of wage-loss compensation which would otherwise be payable.[ ] ACE's version, which specifically addressed which system would bear the burden of compensating dually-eligible employees, was not adopted by the legislature. Ultimately, the legislature settled on the language substantially similar to that eur-rently used in section 187, which does not prefer unemployment insurance to workers' compensation, does not provide for an offset, and does not discuss permanent or temporary partial disability. The final version provided: See. 28.30.227. OTHER BENEFITS. No compensation shall be payable to an employee under § 180 [permanent total disability] or 185 [temporary total disability] of this chapter for any week in which the employee receives unemployment benefits (AS 28.20).[ ] In response to the final version of section 227, the committee heard a position statement from Dick Block, then-president of the Alaska National Insurance Company, who expressed concern that "an employee would reject unemployment insurance and take workers compensation." Rejecting the idea that the statute permitted a totally disabled employee to select among potential remedies, Representative Rogers explained that "this section applies only to total disability, and one who is totally disabled cannot draw unemployment." In the analysis of the final bill prepared for the Senate Labor and Commerce Committee, current section AS 28.830.187 was explained as follows: This section clarifies the relationship between workers' compensation and unemployment benefits. Temporary total and permanent total disability compensation are not consistent with the eligibility of an injured worker to receive unemployment benefits, and accordingly, are not payable to an injured worker receiving unemployment benefits. This section does not affect the payment of temporary partial or permanent partial disability compensation to a worker who is receiving unemployment benefits, [ ] Nowhere in the legislative record is there any indication that the legislature intended receipt of unemployment benefits to permanently bar an injured employee from receiving workers' compensation benefits when appropriate. Instead, the legislative history indicates that the legislature was aware of the potential for overlap between unemployment and workers' compensation benefits and sought to prevent a double recovery by claimants. It certainly does not appear that the legislature envisioned the situation eur-rently before this court, where a temporarily injured worker receives misinformation from her physician with the knowledge of her employer, is released to work with restrictions that effectively bar her from finding employment, is laid off by that employer, prompting her to apply for unemployment benefits, and then finally receives a second opinion, after which she undergoes surgery, displays signs of recovery, and then retroactively applies for temporary total disability benefits. The dissent concludes that the statute is completely unambiguous, effectively arguing that the statute admits only one interpretation: that an employee is forever barred from receiving workers' compensation benefits for any week in which the employee has ever received unemployment compensation. But the statute does not say that; it says that the compensation is not payable "for a week in which the employee receives unemployment benefits." The board's interpretation of the statute-that a week for which the employee has repaid benefits is not a week "in which the employee receives unemployment benefits"-is consistent with the language of the statute. Moreover, under the facts of this case, the board's interpretation leads to the result the workers' compensation system was created to provide: the award of compensation benefits to which the injured worker was entitled. The Workers' Compensation Board concluded that DeShong had demonstrated by clear and convincing evidence that she had never been medically stable and therefore had been eligible for temporary total disability benefits since December 1998. The superior court concluded that there was substantial evidence to support that finding and we agree. Because we can discern no language, either in the statute itself or in the legislative history, that erects a permanent bar to the receipt of workers' compensation benefits if unemployment benefits have been repaid, we affirm the holding of the board. To hold otherwise would forever bar. an unknowing and injured employee from receiving the workers' compensation benefits to which she is otherwise entitled merely because she first applied for unemployment insurance. The language of the statute does not require this result, nor do we believe such an outcome would be desirable. Given the discernable purposes of the legislature in enacting AS 283.30.187-preventing double recovery, denying workers' compensation coverage for workers who have reached maximum medical stability, and maintaining incentives to return to work-requiring DeShong to repay her unemployment benefits before she is entitled to receive TTD benefits was an appropriate response to her situation. We therefore affirm the board's decision. v. CONCLUSION Because the board did not err in concluding that DeShong produced clear and convincing evidence that she was not medically stable during the time in dispute and did not err in requiring DeShong to repay her unemployment benefits before she could receive TTD benefits, we AFFIRM the superior court's decision that affirmed the decision of the board. . Medical stability is defined by AS 23.30.395(21) as "the date after which further objectively measurable improvement from the effects of the com-pensable injury is not reasonably expected to result from additional medical care or treat-mept.'" Medical stability is "presumed in the absence of objectively measurable improvement for a period of forty-five days; this presumption can be rebutted by clear and convincing evidence." . Although he found that DeShong had reached medical stability, Dr. Geveart apparently believed that the chronic nature of her injury might require adjustments to her work environment and duties. . It is unclear what Dr. Dingeman meant by "disposition process." He may have been referring to the disposition of her worker's compensation claim before the board, believing that surgery should be delayed until the board had heard her claim for benefits. . It is unclear what Dr. Dingeman meant by "statutory stability" and "clinical stability." Taken in context, the whole sentence seems to suggest that although DeShong had reached a period of forty-five days with no measurable improvement, the degeneration of her elbow would continue over the next eighteen months before stabilizing. . AS 23.30.095(a). . Medial epicondylitis refers to the inflammation of the tendons on the inside of the elbow. See http://www.intelihealth.com (last visited Aug. 18, 2003). . Ulnar entrapment occurs when pressure is placed on the nerve that runs down the inside of the elbow, causing pain in the elbow or wrist. See http://www.emedicine.com/orthoped/top-ic574.htm (last visited Aug. 18, 2003). . A nerve conduction study is used to document the extent of nerve damage by measuring the rate at which electrical impulses move along a nerve. See http://www.neurologyhealth.com/nes.htm (last visited Aug. 18, 2003). . Median neuropathy occurs when the median nerve in the wrist, which runs through the wrist bones and ligaments which compose the carpal tunnel, is compressed, causing tingling, numbness, weakness, or pain in the fingers, hand, forearm, and/or elbow. It is commonly referred to as carpal tunnel syndrome. See http://www.emedicine.com/neuro/topic208.htm (last visited Aug. 18, 2003); httpy//www.inteli-health.com (last visited Aug. 18, 2003). . Ulnar neuropathy refers to an injury of the nerve along the inside of the elbow resulting in muscle weakness, pain, numbness, redness, and/or burning or tingling sensations. See http://www.neurosurgeon.com/conditions/ul-nar_neuropathy.htm; http://my.webrmad.com (last visited Aug. 18, 2003). . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000); Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). . Id. . Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 (Alaska 1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)). . Tesoro Alaska Petroleum Co., 746 P.2d at 903. . Id. . Id. . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . AS 23.30.185 states: In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability. . AS 23.30.395(21). . Id. . See supra Part ILA. . AS 23.30.095(a) provides, in relevant part: When medical care is required, the injured employee may designate a licensed physician to provide all medical and related benefits. The employee may not make more than one change in the employee's choice of attending physician without the written consent of the employer. Referral to a specialist by the employee's attending physician is not considered a change in physicians. . Id. . Id. . AS 23.30.095(e) provides, in relevant part: The employee shall, after an injury, at reasonable times during the continuance of the disability, if requested by the employer or when ordered by the board, submit to an examination by a physician or surgeon of the employer's choice authorized to practice medicine under the laws of the jurisdiction in which the physician resides, furnished and paid for by the employer. . Id. . Madison v. State, Dep't of Fish & Game, 696 P.2d 168, 173 (Alaska 1985). . Id. (quoting Earth Res. Co. v. State, Dep't of Revenue, 665 P.2d 960, 965 (Alaska 1983) (quoting Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971))). . Indeed, we have cited AS 23.30.187 only twice, and neither case involved the question before us today. See Wien Air Alaska v. Kramer, 807 P.2d 471, 473 n. 3 (Alaska 1991) (noting that AS 23.30.187 prohibits a recipient of unemployment benefits from simultaneously collecting disability compensation); Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 272 n. 13 (Alaska 1984) (observing that one of the purposes served by AS 23.30.187 is to maintain benefits at a level which does not discourage the recipient from returning to work). . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996). . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 393 (Alaska 2001) (quoting State v. Alex, 646 P.2d 203, 208-09 n. 4 (quoting United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.1973))). . AS 23.30.187. . Id. . Wien Air Alaska v. Arant, 592 P.2d 352, 357 (Alaska 1979) overruled on other grounds by Fairbanks N. Star Borough Sch. Dist. v. Crider, 736 P.2d 770, 775 (Alaska 1987). . AS 23.30.075(a). . 544 P.2d 82 (Alaska 1975). . Id. at 86-87 (quoting 1 Artaur Larson, Work men's Compensation Law § 2.20 (1972), now Artaur Larson & Lex Larson, Larson's Workers' ComPBnsaTION Law § 1.03[2] at 1-5 (May 2003)). . Letter from Representative Terry Martin, Chairman House Labor & Commerce Comm., Alaska State Legislature, to All Concerned About Alaska's Workers Compensation, Referencing More Points of View to Consider for Alaska's Workers Compensation Legislation, H.B. 159, 1981 (January 5, 1982) (House Labor & Commerce Comm. File, HB. 159 (1981-82)). . Id. at 1 (emphasis added). . In his letter, Representative Martin explained: "Normally an individual receiving workers compensation for any week would not be able to work, and therefore would not qualify for unemployment compensation. There are situations, however, where the person could be able to work but cannot perform his old job because of the disability. If he is receiving unemployment compensation for any such week, the worker compensation should reduce dollar for dollar any unemployment benefit the individual could otherwise receive." Id. at 2. . Epwarp L. Hite, RecommEenpep to THE Araskan Workers' CompEnsation Act, PreparEo ror tHe Araska or Emprovers, Inc (1982) (House Labor & Commerce Comm. File, H.B. 159 (1981-1982)). . Id. at 74-75. . Id. at 74 (emphasis added). . Id. . Id. at 74-75 (emphasis added). . Committee Substitute for House Bill (C.S.H.B.) 159, 12th Leg., 2d Sess. (1982). . The Alaska National Insurance Company performs policy issue and loss adjusting services for the Alaska Assigned Risk Pool, which was established by the State of Alaska for those employers unable to find an insurance company to write workers' compensation insurance on a voluntary basis. See Alaska National Insurance Company website, http://www dex.php?action=akworkers (last visited Aug. 14, 2003). . See House Labor & Commerce Standing Comm. Meeting Minutes, H.B. 159, Tape No. 19, No. 103 (House Labor & Commerce Comm. File, H.B. 159 (Feb 18, 1982)). . Id. In order to collect unemployment insurance, an individual must be "able to work and available for suitable work." AS 23.20.378(a). Because one who is totally disabled for the purposes of workers' compensation is temporarily unable to work, she cannot be legally eligible for both,. See Bailey v. Litwin Corp., 713 P.2d 249, 253 (Alaska 1986) (endorsing territorial court's definition of temporary total disability in Phillips Petroleum Co. v. Alaska Indus. Bd., 17 Alaska 658, 665 (D.Alaska 1958) (quoting Gorman v. Atl. Gulf & Pac. Co., 178 Md. 71, 12 A.2d 525, 529 (1940) as " 'the time during which the workman is wholly disabled and unable by reason of his injury to work' "). . Section By SzEcrion Anatysis, C.S. ror House Birr No. 159 § 19 (Senate Labor & Commerce Comm. File, H.B. 159 (1981-82)) (emphasis added). . We recognize that other states have taken varying approaches to the situation presented by this case: some allow for offset through the workers' compensation system for employees who have already collected unemployment insurance, see, e.g., Brooks v. Chrysler Corp., 405 A.2d 141, 143 (Del.Super.1979) (holding that receipt of unemployment does not necessarily disqualify one from receiving disability benefits but that any disability award should be reduced by the amount of unemployment benefits received); some statutorily provide for offset in their workers' compensation statutes, see, e.g., Coro.Rev. Stat. Ann. § 8-42-103(1)(f) (West, WESTLAW through 2003 Sess.) (allowing an offset of TTD by any unemployment benefits received); and some hold that prior receipt of unemployment benefits does not bar receipt of workers' compensation benefits. See J.E. Leonarz, Annotation, Application for, or Receipt of, Unemployment Compensation Benefits as Affecting Claim for Workmen's Compensation, 96 ALR2d 941, § 3 (1964). While using workers' compensation to offset DeShong's receipt of unemployment insurance might have been a viable option in this case, neither party advocated for such a result. Rather, DeShong sought an order for reimbursement and Alyeska argued that no award was appropriate. Because offset has not been sought by either party, and because we have received no briefing on the issue, we reserve for future decision the question of whether offset might ordinarily provide a remedy preferable to reimbursement.

9095501

STATE FARM FIRE & CASUALTY COMPANY, Plaintiff, v. WHITE-RODGERS CORPORATION, State Industries, Inc., and SEMCO Energy, Inc. d/b/a/ ENSTAR Natural Gas Co., Defendants

State Farm Fire & Casualty Co. v. White-Rodgers Corp.

2003-09-26

No. S-10530

729

732

77 P.3d 729

77

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:36:35.701622+00:00

CAP

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

STATE FARM FIRE & CASUALTY COMPANY, Plaintiff, v. WHITE-RODGERS CORPORATION, State Industries, Inc., and SEMCO Energy, Inc. d/b/a/ ENSTAR Natural Gas Co., Defendants.

STATE FARM FIRE & CASUALTY COMPANY, Plaintiff, v. WHITE-RODGERS CORPORATION, State Industries, Inc., and SEMCO Energy, Inc. d/b/a/ ENSTAR Natural Gas Co., Defendants. No. S-10530. Supreme Court of Alaska. Sept. 26, 2003. Rod R. Sisson, Sisson & Knutson, P.C., Anchorage, for Plaintiff State Farm Fire & Casualty Co. Patrick D. McVey, Riddell Williams P.S., Seattle, Washington, Thomas A. Matthews and Thomas L. Hause, Matthews & Zahare, P.C., Anchorage, for Defendants White, Rodgers Corp. and State Industries, Inc. Madelon M. Blum, Lynch & Blum, P.C,, Anchorage, for Defendant SEMCO Energy, Inc., d/b/a ENSTAR Natural Gas Co. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

1365

8930

OPINION PER CURIAM. I. INTRODUCTION In 1995 a natural gas explosion destroyed the home of William and Sally Brook. Their insurer, State Farm, paid the Brooks' property damages. Nearly six years after the explosion, State Farm sued in federal court to recover its payments from three companies whose allegedly faulty products or negligent actions caused the explosion. On certification from the federal court, we now consider whether State Farm's claim for the Brooks' property damages is covered by Alaska's two-year "tort" statute of limitations or its six-year statute of limitations "for waste or trespass upon real property." Because we have recently held that the six-year statute for "trespass" attaches broadly to any alleged interference with a possessor's property rights, we conclude that the six-year limit governs State Farm's claim. II. FACTS AND PROCEEDINGS This case arises on undisputed facts: On March 28, 2001, State Farm Fire & Casualty Company ("State Farm") filed its original complaint, seeking to recover money it paid out to William and Sally Brook when their house was damaged in an explosion on March 25, 1995. State Farm alleges that the explosion was caused by a natural gas leak that State Farm traces to products manufactured, sold, or supplied by Defendants White-Rodgers Corporation, State Industries, Inc., and Semeo Energy, Inc. d/b/a Enstar Natural Gas (collectively "Defendants"). More specifically, State Farm alleges that Defendant Enstar negligently inspected, installed, and/or maintained the natural gas service regulator, which controls (i.e., reduces) the pressure of gas supplied to the residence from the higher "street pressure" of the main gas supply line. State Farm further alleges that a White-Rodgers gas control valve installed on a State Industries water heater was defective and/or negligently designed and/or manufactured, because it released gas when exposed to the "street pressure" of the main gas supply line. Defendants moved for summary judgment arguing that State Farm's real property claims were not brought within the two-year statute of limitations of AS 09.10.070. State Farm concedes that the action was not commenced within two years, but contends that the six-year statute of limitations of AS 09.10.050 applies to its real property claims. At the time pertinent to State Farm's claim, AS 09.10.070 provided in part: "A person may not bring an action . for any injury to the person or rights of another not arising on contract and not specifically provided otherwise . unless the action is commenced within two years. In contrast, AS 09.10.050 provided in part: "Unless the action is commenced within six years, a person may not bring an action . for waste or trespass upon real property[.]" In considering the defendants' summary judgment motion, the federal district court predicted that the six-year trespass statute would likely apply to State Farm's claim. To support this conclusion, the court cited McDowell v. State, which at that time was our most recent decision interpreting these two- and six-year statutory limits for similar claims. Nevertheless, because it found no Alaska Supreme Court case directly on point, the federal court certified the matter to us for resolution under Alaska Rule of Appellate Procedure 407. We granted the federal court's request and now answer the certified question. III. DISCUSSION When the federal court issued its certification request, our case law left the certified question unsettled. In McDowell v. State, we had declined to read the six-year statute of limitation's reference as adopting the narrow, historical distinction between "trespass"-a direct invasion of property-and "trespass on the case"-an indirect invasion; looking instead to "the plain or common meaning of the term," we held that AS 09.10.050's six-year limit for "trespass upon real property" "is not restricted to actions that allege technical trespass, but instead includes actions that allege an interference with the possessor's property rights." But as the federal court recognized in its certification order, McDowell might not control the present case. The complaint in McDowell alleged an interference with exclusive possession caused by a direct invasion onto the plaintiff's land-spilled or leaked petroleum seeping from adjacent property; arguably, then, McDowell's broad reading of AS 09.10.050 might not be dispositive here, since State Farm's complaint alleges no direct, trespassory entry onto the Brooks' property. After the federal court issued its certification order, however, we resolved this uncertainty in Fernandes v. Portwine, squarely extending McDowell to a nuisance claim that entailed no direct trespassory invasion. Confirming McDowell's broad reading of the six-year trespass statute, our decision in Fernandes "look[ed] to the type of injuries claimed, as opposed to the causes of action pled," concluding: "Trespass" has both a narrow and a broad meaning. The narrow meaning refers to an unlawful entry upon the land of another. The broad meaning encompasses, as we recognized in McDowell in a statute of limitations context, any "unlawfal interference with one's person, property, or rights." The broader definition here, as in McDowell, determines the meaning of AS 09.10.050. Using this definition, the Port-wines' nuisance claims were encompassed by AS 09.10.050. The defendants in the present case attempt to distinguish Fernandes, arguing that State Farm's claim "sounds in" products liability or tort and alleges no "unlawful" entry onto or interference with the Brooks' property. But under the reading of AS 09.10.050 we adopted in McDowell and Fernandes, these distinctions have no legal consequence. Looking to the injuries elaimed, rather than to the cause of action pled, we find that State Farm's claim for property damages alleges a substantial interference with the Brooks' right to possess and use their residence; and because this claim alleges wrongful conduct that would be actionable if proved, that is, conduct that would make the defendants legally liable for the damages, the nature of the alleged interference is "unlawful," as required by Fernandes. We thus hold Fernandes to be controlling precedent here. IV. CONCLUSION Given the undisputed statement of facts certified by the federal court, we conclude that the six-year "trespass" statute of limita tions in AS 09.10.050 governs State Farm's claims. . AS 09.10.070 was amended in 1997, after the Brooks' cause of action arose, but the parties agree that the pre 1997 version of the applicable statute of limitations applies to State Farm's claims. Moreover, the parties do not contend that the 1997 amendments would have any effect here, even if they applied. . Though AS 09.10.050 was recently amended in other respects, its trespass provision remains substantially identical. . 957 P.2d 965 (Alaska 1998). . Alaska Rule of Appellate Procedure 407(a) authorizes this court to answer "questions of law of this state which may be determinative of the cause then pending in the certifying court . [if] there is no controlling precedent in the decisions of the supreme court of this state." . The United States District Court actually posed two separate questions: whether AS 09.10.050 would apply to "any alleged negligent or other tortious injury to real property" and, more specifically, whether State Farm's claim in this case constitutes "waste or trespass upon real property" under that provision. We choose to focus on the second, more specific question, finding it unnecessary to decide whether the six-year time limit would necessarily govern all claims for negligent and tortious injuries to real property. Cf. Toner for Toner v. Lederle Lab., Div. of Am. Cyanamid Co., 779 F.2d 1429, 1433 (9th Cir.1986) (recognizing that a court accepting certification is not bound by the certifying court's phrasing and "may reformulate the relevant state law questions as it perceives them to be, in light of the contentions of the parties"). . 957 P.2d at 969-70. . Id. at 970. . Id. at 967, 970. . 56 P.3d 1, 5-6 (Alaska 2002). . Id. at 6 (approvingly quoting superior court's decision). . Id. (footnotes omitted).

9095476

FRANK E., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee

Frank E. v. State, Department of Health & Social Services, Division of Family & Youth Services

2003-09-26

No. S-10707

715

723

77 P.3d 715

77

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:36:35.701622+00:00

CAP

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

FRANK E., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.

FRANK E., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee. No. S-10707. Supreme Court of Alaska. Sept. 26, 2003. J. Randall Luffberry, Palmer, for Appellant. Michael G. Hotehkin, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Erica Kracker, Kracker Law Office, Palmer, Guardian Ad Litem. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

5480

33736

OPINION CARPENETIL Justice. I. INTRODUCTION The superior court terminated a father's parental rights. The father argues that the court erred in (1) finding that the state had made reasonable efforts to reunify him with his children and (2) finding that termination served the best interests of his children. Because the superior court did not err in finding that the state made reasonable reunification efforts and in considering the best interests of the children, we affirm. II. FACTS AND PROCEEDINGS A. Facts Frank E. is the father of the three children involved in this case: daughter Beth E., born in 1995; son Frank E. Jr., born in 1997; and daughter Brianna E., born in 1999. Frank and his wife Ann E. moved to Alaska in 1997. In November 2000 Frank and Ann were arrested for operating a methamphetamine lab, and Frank pled no contest to misconduct involving a controlled substance in the fourth degree for possession of methamphetamine. He was sentenced to four years, with nineteen months to serve. Following the arrest, the state took custody of the children at issue in this appeal, while Frank's son from a previous marriage. Zale, went to live with his biological mother. Shortly thereafter, Beth, Frank Jr., and Brianna began living with Diane P., who is Frank's mother. Diane has already adopted Cathy P., another of Frank's children, after Frank's parental rights to her were terminated. Diane will adopt Beth, Frank Jr., and Brianna if Frank's parental rights are terminated. Shortly after Frank's incarceration the state created a case plan for him which focused on substance abuse treatment, parenting classes, and family violence classes that could only be taken after his release from incarceration. The original case plan did not include any reference to programs available at the prison at which Frank was housed, but Frank took advantage of some of the anger management classes, parenting classes, and Alcoholies Anonymous/Narcoties Anonymous meetings available at the prison. B. Proceedings On February 27, 2001 the state filed a petition to terminate Frank's parental rights to Beth, Frank Jr., and Brianna. Frank stipulated that the children were children in need of aid but contested the termination of his parental rights. After proceeding with part of the termination trial, Superior Court Judge Eric Smith issued an order on June 6, 2001 continuing the trial until after Frank's scheduled release from prison so that Frank would have an opportunity to resolve his problems and get his children back by completing his case plan. Frank was scheduled to be released from prison in November 2001, but was not released because he was indicted for sexual abuse of his daughters Cathy and Beth. This made it impossible for him to comply with the case plan within the given time. Following Frank's indictment, the state revised his case plan to include more treatment options during his time in prison. Frank was convicted of sexual abuse of Cathy and attempted sexual abuse of Beth and sentenced to fourteen years, with twelve years to serve. His sentence includes ten years of probation, one condition of which is that he have no contact with persons under the age of eighteen without the written permission of his probation officer. He will be eligible for release in November 2009, at which point his children would be fourteen, twelve, and ten years old. Frank appealed his conviction on July 18, 2002; at this time the parties are still awaiting the transcript from his trial. On July 17, 2002 the superior court terminated Frank's parental rights to Beth, Frank Jr., and Brianna. The superior court based its decision on two independent grounds for termination, AS 47.10.080(0) and 47.10.088. Frank appeals the superior court's findings regarding elements of both grounds for termination. He appeals the court's decision to proceed with termination of his parental rights prior to the resolution of his merit appeal of his conviction for sexual abuse and attempted sexual abuse. He argues that his conviction and scheduled incarceration were essential to ° termination under AS 47.10.080(0) and formed one of several bases for termination under 47.10.088. Frank also appeals the termination of his parental rights under AS 47.10.088, arguing that the superi- or court erred in finding that the state made reasonable efforts to reunify him and his children, and in its consideration of the best interests of his children. III. STANDARD OF REVIEW "We apply the clearly erroneous standard when reviewing the factual findings supporting the termination of a parent's right to raise his or her children." 'We determine that a finding is clearly erroneous "when a review of the entire record leaves us 'with a definite and firm conviction that the superior court has made a mistake.'" In determining whether a finding is clearly erroneous, "we view the evidence in the light most favorable to the party prevailing below." We review whether the superior court's findings comport with the requirements of the CINA statutes and rules under the de novo standard of review. Under this standard, we "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION The superior court terminated Frank's parental rights under both AS 47.10.088 and AS 47.10.080(0), which provide alternate and independent bases for the termination. In order for Frank to prevail we must find that termination of his parental rights was im proper under both of these independent justifications. We decline to reach the question of whether a parent's conviction can be used to terminate his or her parental rights under AS 47.10.080(0) before an appellate court has reviewed and affirmed the conviction, because we find that the superior court did not err by terminating Frank's parental rights under AS 47.10.088. We turn now to consideration of that statute. Alaska Statute 47.10.088 sets out the procedural steps involved in a termination of parental rights. It provides in relevant part that: (a) Exeept as provided in AS 47.10.080(0), the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds (1) by clear and convincing evidence that (A) the child has been subjected to conduct or conditions described in AS 47.10.011; and (B) the parent 1) has not remedied the Eonduct or conditions in the home that place the child at substantial risk of harm; or (i) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury; and (2) by preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts. (ec) In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child. Frank challenges two aspects of the termination of his parental rights under AS 47.10.088: whether the state made reasonable efforts to reunite him and his children in accordance with AS 47.10.088(a)(2), and whether the superior court properly considered his children's best interests in accordance with AS 47.10.088(c). A. The Superior Court Did Not Err in Holding that the State Met Its Duty To Make Reasonable Efforts To Reunite Frank and his Children Under AS 47.10.086. Frank first asserts that the superior court's termination of his parental rights under AS 47.10.088(a)(2) was improper because the state failed to prove that it had complied with the requirements of AS 47.10.086(a), which establishes the state's duty to make reasonable efforts to provide Frank with services designed to reunify him with his children. The superior court found that the requirements of AS 47.10.086 had been met because: (1) Frank's conviction for attempted sexual abuse of Beth made reunification efforts un necessary under AS 47.10.086(c)(1), (2) the length and conditions of Frank's sentencing for the sexual assault made reunification efforts unnecessary under AS 47.10.086(c)(10), and (8) in any event, the state did make reasonable efforts to reunify Frank and his children. Frank challenges all three of these bases, any of which is a sufficient basis upon which to conclude that the state met the reasonable efforts requirement. Because we find that the state made reasonable efforts to reunify Frank and his children in accordance with AS 47.10.086(a), we decline to address Frank's claims that the superior court erred by holding that the state was exempted from its responsibility to provide such efforts by AS 47.10.086(c)(1) and AS 47.10.086(c)(10). Frank challenges Judge Smith's finding that the state met its obligation to make reasonable efforts to reunite the family. The court found that "[even if reasonable efforts were required, the department made those efforts, at least prior to [Frank's] sexual abuse conviction." It based this conclusion on its finding that the state "prepared a case plan requiring treatment of the substance abuse and anger management issues. [Frank] was afforded access to a number of programs while he was incarcerated. In short, the department did what it could, given the constraints placed by the fact that [Frank] was incarcerated." Frank alleges that the state failed to identify services in accordance with AS 47.10.086(a)(1) and to actively offer those services in accordance with AS 47.10.086(a)(2), and that this failure made the superior court's finding that the state made reasonable efforts toward reunifying Frank and his children clearly erroneous. The state's efforts to provide the services mandated by AS 47.10.086(a) is broken down by the parties into two periods of time. The first of these is the period between Frank's incarceration for methamphetamine possession following his November 2000 arrest and his indictment for sexual abuse, as the indictment postponed his anticipated November 2001 release from prison for the methamphetamine offense. The second period is the time between his indictment for sexual abuse and the termination of his parental rights on July 17, 2002. Frank contends that Dr. Lindeman, a social worker with the Department of Health and Social Services, Division of Family and Youth Services (DFYS), who was responsible for fulfilling the state's duty to identify reunification services in accordance with AS 47.10.086(a)(1), made little or no effort to identify and learn about treatment options available in Frank's prison prior to Frank's indictment for sexual abuse. He argues that the superior court erred by finding that the reasonable efforts requirement had been satisfied, and that its termination of his parental rights should be reversed because of this failure. Frank next contends that the state violated AS 47.10.086(a)(2)'s requirement that it "actively offer" the parent services identified under subsection (1). Frank argues that AS 47.10.086(a)(2) "require[s] at a minimum that DFYS communicate with the parent in a meaningful way the specific services available, and inform the parent how those services will help. Also, DFYS should inform how the parent can avail himself of those services." In sum, Frank argues that the state attempted to terminate his parental rights without giving him an opportunity to remedy the conduct that caused his children to be in need of aid. The state fails to respond effectively to Frank's argument that its original case plan was inadequate. It appears to recognize that it did not identify or actively offer any programs to Frank during his incarceration for methamphetamine possession in the form of an organized case plan aimed at reunifying Frank and his children. Indeed, the original case plan for the time in which Frank was incarcerated focused exclusively on services that were available only after his release from prison in November 2001, whereas the state attempted to terminate Frank's parental rights before his anticipated November 2001 release by filing its petition to terminate parental rights on February 27, 2001 and arguing for immediate termination at the June 2001 termination trial. (In fairness to the state, its original case plan was formulated at a time when it was assumed that Frank would be released from prison in less than two years. His subsequent indictment for sexual abuse dramatically altered that expectation.) The state argues that it fulfilled its obligation to identify and actively offer services to Frank because the prison staff publicized the programs available to Frank while he was incarcerated. But the test of whether the state made reasonable efforts to reunify Frank and his children is not limited to this particular segment of time. Instead, we examine whether the state's reunification efforts, when looked at in their entirety, satisfy the requirements of AS 47.10.086(a). Though the state's failure to identify and offer programs to Frank before the planned termination would generally violate the state's duty under AS 47.10.086, the failure was harmless in this case because the superi- or court continued the June 6, 2001 termination trial specifically to allow Frank an opportunity to complete his case plan. The post-release portion of the original case plan fulfilled AS 47.10.086(a)(1) and (2)'s requirement that the state identify and offer reunification services to Frank, as it called for Frank to enter inpatient substance abuse treatment, attend Alcoholics Anonymous/Narcotiecs Anonymous (AA/NA), and attend parenting classes. Contrary to Frank's suggestion, the requirement that the state offer reunification services is fulfilled by setting out the types of services that a parent should avail himself or herself of in a manner that allows the parent to utilize the services. In this case, the above services were reasonably offered to Frank because the case plan identified them in a manner that allowed Frank to attend appropriate AA/NA meetings and apply to at least two appropriate inpatient substance abuse treatment programs. The superior court ensured that Frank would have meaningful access to these properly identified reunification services that were offered to Frank by continuing the termination trial until January 22, 2002 in order to give Frank the opportunity to complete the post-release services specified in his case plan. As the superior court stated, the continuance "will give the court concrete information regarding [Frank's] ability and desire to remedy the conditions that placed his children so badly at risk, and will give him the necessary reasonable time in which to do so." By providing a reasonable opportunity for Frank to remedy the behavior that caused his children to be in need of aid, the continuance cured the state's attempt to terminate Frank's parental rights without providing him with the reasonable efforts to reunify him and his children mandated by AS 47.10.086(a). Finally, we examine the state's efforts to identify and offer programs to Frank after his original ease plan was rendered moot when his incarceration was extended past the originally scheduled November 2001 release date due to his prosecution for sexual abuse. Though Frank does not focus on this stage of the proceedings, several of his arguments attack the sufficiency of the state's efforts to identify and offer services aimed at reunifying him and his children. He argues that Dr. Lindeman's efforts to identify services after the state filed its petition to terminate Frank's parental rights were "perfunctory at best." The state contends that it properly identified plans available in prison when it became apparent that Frank would be imprisoned past his expected November 2001 release date. Just as we held that the original case plan as extended by the court offered reunification services in a manner that allowed Frank to avail himself of them, we hold that the revised case plan satisfied the requirements of AS 47.10.086(a), after the original extended case plan was made irrelevant by Frank's continued incarceration. Dr. Lindeman testified to the November 2001 changes in the case plan, stating that "when it became evident that the incarceration was going to extend beyond the November time period, then a treatment plan was drafted up which was modified to reflect both while he was in incarceration and while he was out of incarceration." The inclusion of services available in prison is also seen in the revised case plan, which, in contrast to previous plans, provided that "[wlhile awaiting release from jail he will participate in any groups offered in jail in the areas of anger management, substance abuse or psychotherapy." Furthermore, though Frank argues that termination was improper because the state did not take a more active role in recommending specific services, he does not contend that he was unable to identify the services available in the specified areas, and in fact demonstrated the ability to do so by taking advantage of an anger management class during his incarceration. We therefore hold that the state's identification of specific areas of reunification services is a sufficient basis for the court's finding that "[the Department . met its burden to prove by a preponderance of the evidence that it had made the reasonable efforts required by AS 47.10.086." B. The Superior Court Did Not Err in Finding that Termination of Frank's Parental Rights Was in the Children's Best Interests. Alaska Statute 47.10.088(c) mandates that "[iIn a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child." Frank contends that the superior court's finding that immediate termination of his parental rights was in the children's best interests was clearly erroneous because delaying termination until the resolution of his appeal from his conviction for sexual abuse and attempted sexual abuse is in the best interests of his children. Frank claims that his children would not suffer significant harm from the delay in permanency caused by waiting for the resolution of his criminal appeal because their placement with Diane would be unaffected. He also argues that immediate termination is not in the children's best interests because they might be harmed by the possible overturning of their adoption under Alaska Civil Rule 60(b)(5). But these possibilities are insufficient to overturn the superior court's factual finding, as we will overturn factual findings only when they are clearly erroneous. The state points to the testimony of Dr. Lindeman, who testified that the state decided to move for termination because the "necessity to get [the children] stability and to maintain the consistency of stability was very paramount." Frank responds that Dr. Lindeman's testimony established that the children are already well-bonded with their grandmother, and that this supports his contention that little benefit is gained by freeing the children for adoption because they will maintain the current placement with his mother regardless of whether they are adopted. After hearing Dr. Lindeman's testimony, the superior court found on June 6, 2001 that "the children are quite young and . it is in their best interests to have some finality in their lives with respect to who actually will be their parent." Though the superior court did not terminate Frank's parental rights at that time, its finding that "an additional delay of seven months will not so adversely affect the children that the trial, and hence a decision on the Department's petition, cannot be continued," recognized that finality at some point was an important aspect of the children's best interests. This finding that finality was in the children's best interests was not clearly erroneous, and a review of Dr. Lindeman's testimony does not leave us " 'with a definite and firm conviction that the superior court has made a mistake," " The superior court then applied this finding in its July 17, 2002 order terminating Frank's parental rights. The court found that termination of Frank's parental rights was proper because: The children are living with their grandmother, who wishes to adopt them. Their father will be in jail for most of their childhood. They need the permanency promised by adoption, not the uncertainty imposed by a possible reunion with a father with significant untreated problems whom they will not see for years. It is absolutely not in their interest to have to wait those years for this matter to be resolved. They need to be able to get on with their lives; termination of [Frank's] rights and adoption by their grandmother will enable them to do so. While this finding that immediate termination of Frank's parental rights is at least partially based on an assumption that Frank will not win his criminal appeal, it also clearly recognizes that a delay of years in providing the children with finality in their parental situation is not in their best interests. The delay and resulting harm to the children occasioned by criminal appeals that will take years is real. This finding of harm is amply supported in Dr. Lindeman's testimony regarding the importance of providing the children with stability; it is not clearly erroneous. We hold that the superior court did not err by finding that termination of Frank's parental rights was in the children's best interests. v. CONCLUSION Because the superior court did not err in determining that the state provided reasonable efforts aimed at reunifying the father and his children or in finding that termination of the father's parental rights was in the best interests of his children, we AFFIRM the decision of the superior court. MATTHEWS, Justice, concurring. . We use pseudonyms to protect the privacy of those involved. . Aun is the mother of the three children involved in this case. She has already had her parental rights terminated and is not the subject of this appeal. . AS 47.10.080(0) provides: For purposes of terminating a parent's parental rights under the standards in (c)(3) of this section, the court may determine that incarceration of the parent is sufficient grounds for determining that a child is a child in need of aid under AS 47.10.011 as a result of parental conduct and that the parental rights of the incarcerated parent should be terminated if the court finds, based on clear and convincing evidence, that (1) the period of incarceration that the parent is scheduled to serve during the child's minority is significant considering the child's age and the child's need for an adult's care and supervision; (2) there is not another parent willing and able to care for the child; and (3) the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration that will be during the child's minority. This statute was added in 1996 "to respond to the Alaska Supreme Court's invitation in A.M. v. State of Alaska, 891 P.2d 815 (Alaska 1995) and Nada A. v. State of Alaska, 660 P.2d 436 (Alaska 1983) to create a statutory basis for making incarceration a factor that can be considered in termination proceedings concerning children in need of aid." Ch. 89, § 1, SLA 1996. . AS 47.10.088 generally prescribes the findings that a court must make before terminating parental rights. The court must find that a child is in need of aid under AS 47.10.011, that the parent has not remedied the situation, that the state made reasonable efforts to provide family support services so as to avoid out-of-home placement or to safely return the child home under AS 47.10.086, and that termination is in the best interests of the child. . G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 650 (Alaska 2003). . Id. at 650-51 (quoting S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)). . In re J.L.F. & K.W.F., 828 P.2d 166, 170 n. 12 (Alaska 1992) overruled on other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996). . P.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1127, 1130 (Alaska 2002). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . We decline to decide this issue for two reasons: First, our affirmance of termination under AS 47.10.088 makes consideration of termination under AS 47.10.080(o) moot. Second, Frank fails to adequately brief the potential constitutional issues involved in terminating parental rights based on a conviction when that conviction has not been affirmed on appeal. See, e.g., Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737 (Alaska 1999). . AS 47.10.086(a) provides, in relevant part, that the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to . enable the safe return of the child to the family home, when appropriate . The department's duty to make reasonable efforts under this subsection includes the duty to (1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid; (2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and (3) document the department's actions that are taken under (1) and (2) of this subsection. . AS 47.10.086(c) provides, in relevant part: The court may determine that reasonable efforts of the type described in (a) of this section are not required if the court has found by a preponderance of the evidence that (1) the parent or guardian has subjected the child to circumstances that pose a substantial risk to the child's health or safety; these circumstances include abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm{.] . AS 47.10.086(c) provides, in relevant part: The court may determine that reasonable efforts of the type described in (a) of this section are not required if the court has found by a preponderance of the evidence that (10) the parent or guardian is incarcerated and is unavailable to care for the child during a significant period of the child's minority, considering the child's age and need for care by an adult. . Frank also contends that the state failed to satisfy AS 47.10.086(a)(3)'s mandate to document its actions under AS 47.10.086(a)(1)-(2). But he fails to make any argument, other than that implied by his argument that the state failed to identify and offer services to him, concerning the state's alleged failure. Because "[wle will not consider arguments which are inadequately briefed on appeal," we hold that Frank has waived any consideration of the adequacy of the state's documentation of its efforts in its case plan. Martinson, 989 P.2d at 737. . The parties also dispute the adequacy of visitation in this case, but visitation was properly discontinued for the majority of Frank's incarceration because of credible allegations of sexual abuse against Frank and because Diane moved to California with the children. . Frank does not contend that reasonable efforts should have been provided to him after his convictions for sexual abuse of Cathy and at-temapted sexual abuse of Beth. . Alaska R. Civ. P. 60(b)(5) provides that a court may relieve a party from a final judgment when "a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Frank argues that, should his conviction be overturned on appeal, he would be able to attack the termination of his parental rights under this rule. We express no opinion as to whether a termination of parental rights can be overturned under Rule 60(b)(5). . G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003). . Frank's argument that the superior court's July 17, 2002 termination of his parental rights should be overturned because it is inconsistent with its June 6, 2001 finding that a seven-month delay was in the children's best interests is without merit. The June 6, 2001 order weighed the ongoing harm caused by a seven-month delay in determining that Frank should be given an opportunity to remedy his problems. That finding is not inconsistent with a later finding that an additional, much more significant delay, until the resolution of his criminal appeal, would be harmfal. . G.C., 67 P.3d at 650-51 (quoting S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)).

9090342

William R. BAXTER, Vincent T. Haugen, and Lara C. Johnson, Appellants, v. STATE of Alaska, Appellee

Baxter v. State

2003-09-12

Nos. A-7982, A-7996, A-7998